As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 OLC opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program. Yet in one case–the White Paper’s discussion of how the Hamdi decision affected the program–this probably repeats a discussion in another, still classified, Goldsmith opinion he wrote the day before he left on July 17, 2004. Then there’s a bunch of information that appears (in both redacted and unredacted form) in the Goldsmith opinion but not the WP. As I discuss below, I think there are a number of reasons for this.

I should warn that I did this in about a day or so, so I certainly may have misstated what’s in Goldsmith’s memo. Let me know if you catch anything like that.

General Contents

Goldsmith’s memo is organized this way:

Background (including genesis of program, the scary memo process of reauthorization, two sets of modifications, and prior OLC opinions)

Analysis [of whether the illegal wiretap program is legal under 5 different criteria]

I. Executive Order 12333

II. Statutory Analysis (of FISA and Title III wiretap laws)

III. Completely redacted criterion*

IV. Completely redacted criterion*

V. Fourth Amendment (including extensive discussion of why the current threat makes the illegal program a reasonable search)

*If I had to guess what the two completely redacted criteria are, I’d say one is the Defense Appropriation of 2004, which prohibited data mining of US data, and one is the First Amendment.

The bolded subjects above don’t appear in the WP. The exclusion of some of this–the discussion of how the program works, for example–is dismissed in the WP by saying it cannot be discussed in an unclassified document. The EO 12333 discussion, which presumably pertains in part to the wiretapping of US persons overseas, didn’t seem to be the big public concern after the program was revealed (or maybe the WP didn’t want to admit that limits on wiretapping Americans were just pixie dusted away). And some of these subjects–such as the Defense Authorization, if my guess that it’s one of the totally redacted criteria is right–were no longer operative in 2006 when the WP was issued.

In general, Goldsmith (and the WP) replace John Yoo’s authorization of the program under Article II with what he calls “new analysis” finding that the Afghan AUMF bestowed on the President full Commander in Chief powers, which in the process meant his war powers trumped FISA. The formula isn’t much more sound than what we suspect Yoo to have said, but it gives Goldsmith lots of places to insert wiggle room into interpretations of FISA, for example, arguing that the principle of constitutional avoidance suggests that the purported conflict between the AUMF and FISA must be resolved to make sense constitutionally which, in Goldsmith’s book, means a tie goes to the Commander in Chief.

The focus on the AUMF allows both documents to rehearse a long history of wartime wiretapping that just happens to magically skip the Vietman-era wiretapping that FISA was written to prohibit.

In addition, Goldsmith (and the WP) argues that the importance of the government’s interest in wiretapping al Qaeda makes the warrantless program “reasonable” under the Fourth Amendment. Note, this is almost certainly a departure from John Yoo’s November 2, 2001 Fourth Amendment based argument, given how closely that opinion seems to cling to his October 23, 2001 Fourth Amendment evisceration opinion, and given Goldsmith’s decision not to rely on that opinion on page 100. In the Fourth Amendment discussion, Goldsmith gives very extensive (but entirely redacted) information on the threats that justify such wiretapping; the WP effectively just says “trust us.”

How They Define the Target of the AUMF

Now, in their discussions of the war on terrorism, there are two differences I noted. One is very slight–but I find very intriguing. The WP describes the people the government is permitted to wiretap this way:

The President has acknowledged that, to counter this threat, he has authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”

That is, the WP claims the NSA can only wiretap people with known ties to al Qaeda.

But in his highly-classified  memo, Goldsmith assessed the President had,

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Obviously, Goldsmith’s version would permit the wiretapping of suspected terrorists without clear ties with Al Qaeda–perhaps a group like Hamas or Hezbollah or whatever other group the President determines in secret is in armed conflict with the US (I wonder: does dropping a drone on a group equate to them being in armed conflict with the US?). That also exceeds the terms of the Afghan AUMF (as I have pointed out, the Iraq AUMF, which in typically corrupt fashion emphasizes terrorism, talks about terrorism more generally).

And while this is probably unrelated, consider the difference in how the WP and Goldsmith conceived of the threats described in Keith (the SCOTUS wiretap case that found Nixon-era wiretapping to violate the Fourth Amendment). Goldsmith said that Keith only applied to “investigations of purely domestic threats to security–such as domestic terrorism,” whereas the White Paper says it only applied to “investigations of  wholly domestic threats to security—such as domestic political violence and other crimes” [my emphasis]. Perhaps Alberto Gonzales and Steven Bradbury just edited Goldsmith’s original formulation to avoid worrying their base, which includes a great number of domestic terrorists. Perhaps Goldsmith saw the prohibition on domestic threats more broadly (and AGAG at least envisioned wiretapping people he considered terrorists with no political side–yeah, Earth First, I’m thinking of you!). Also, I think “purely” domestic threats is a somewhat broader limit on the prohibition on domestic wiretapping than “wholly” domestic threats, as it’d be pretty easy for a mental midget like AGAG to argue that Greenpeace had a partly foreign component that therefore permitted wiretapping.

Now, both the WP and Goldsmith distinguish the terrorists they’re authorizing wiretaps for from the people covered by Keith by claiming there is no First Amendment aspect to the alleged terrorists or those who speak with them. Here’s the WP version of the discussion (footnote 2 on page 9), which takes the Goldsmith discussion, also in a footnote, on page 40-41 almost verbatim.

Keith made clear that one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained: “Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’” Keith, 407 U.S. at 314; see also id. at 320 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.”). Surveillance of domestic groups raises a First Amendment concern that generally is not present when the subjects of the surveillance are foreign powers or their agents.

But where the WP version ends, Goldsmith’s discussion continues in maybe 4-6 lines of redacted discussion, then ends with this:

One of the important factors driving the Supreme Court’s conclusion that the warrant requirement should apply in the domestic security context is thus simply absent in the foreign intelligence realm.

Frankly, pretty much any of the plaintiffs in the newly-reinstated ACLU suit, not to mention the increasing number of young Muslim men who get entrapped after their speech suggests they’re a threat, would be able to challenge this assertion to show that the program does raise significant First Amendment issues, not least given the difference in the way fundamentalist Muslim terrorists are treated from how fundamentalist Christian terrorists (with almost the sole exception of the Hutaree) are treated.

But Are We Even at War?

There are two curious divergences in the two papers’ discussion of whether we’re even at war. In addition to Keith, both look to a case called Barreme, which pertained to whether or not the President could order the military to seize ships during a “Quasi War” with France in 1799 (a close equivalent might be a suit on whether the President can allow Halliburton to do business in defiance of sanctions against Iran). Goldsmith’s discussion of the case is far more extensive than what appears in the WP. And as part of it, he claimed that Barreme was distinguished because it wasn’t entirely clear to SCOTUS that the US and France were really, fully at war.

The Court’s decision was fundamentally based on the premise that the state of affairs with France was not sufficiently akin to a full-scale war for the President to invoke under his own inherent authority the full rights of war that, in other cases, he might have at his disposal. As a result, he required the special authorization of Congress to act.

It’s not the way it worked out, but it is conceivable to imagine a world post-9/11 in which Republicans challenged a Democratic President as to whether we were really, fully at war against a band of terrorists. In fact, I think they did after the 1998 Embassy bombings. (Of course, a Democrat wouldn’t have ignored warnings about “Osama bin Laden determined to strike in the US.”)

Meanwhile, written post-Hamdi, the WP has no such doubts. But it does introduce this bizarre argument, not present in the unredacted Goldsmith, that says the AUMF grants even greater power to the Commander in Chief than an actual, old-fashioned, declared war does.

The contrary interpretation of section 111 [giving the President a 15 day window after the declaration of war to wiretap outside of FISA] also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act.

I will come back to the more general discussion of the 15-day window–I’ll show why, having been caught breaking the law, the Bushies may have wanted to pretend there was no possible 15-day period in this case. But for the moment, consider how, between Goldsmith and the WP, they’re both trying to claim all the powers of the Commander in Chief during war, but maybe not always.

The Use of SIGINT Under War

One of the most interesting things I first realized by comparing these two documents is how they both describe the goal of the wiretap program

The WP latches onto the AUMF’s unwise authorization of the President to “determine” who hit us on 9/11 and with it emphasizes that that language permits the President to use wiretapping to identify and locate the enemy.

The terms of the AUMF not only authorized the President to “use all necessary and appropriate force” against those responsible for the September 11th attacks; it also authorized the President to “determine[]” the persons or groups responsible for those attacks and to take all actions necessary to prevent further attacks. AUMF § 2(a) (“the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11th, 2001, or harbored such organizations or persons”) (emphasis added). Of vital importance to the use of force against the enemy is locating the enemy and identifying its plans of attack. And of vital importance to identifying the enemy and detecting possible future plots was the authority to intercept communications to or from the United States of persons with links to al Qaeda or related terrorist organizations. Given that the agents who carried out the initial attacks resided in the United States and had successfully blended into American society and disguised their identities and intentions until they were ready to strike, the necessity of using the most effective intelligence gathering tools against such an enemy, including electronic surveillance, was patent. [my emphasis]

Later, the WP uses the verbs “identify” and “pinpoint.”

The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations—or, to use the terminology of Hamdi, a “fundamental and accepted . . . incident to war,” 542 U.S. at 518 (plurality opinion)—employed to defeat the enemy and to prevent enemy attacks in the United States. [my emphasis]

I find this notable because, in spite of the fact the WP seemingly focuses exclusively on the interception of the content of communications, the verbs it uses just as easily apply to data mining and geo-location as to content. I wondered to myself whether the WP was trying to sneak in claimed authorization to do data mining, even while Bush claimed only to be talking about the collection of actual content.

And once I saw that in the WP, I realized Goldsmith uses the same language.

[Redacted name of program] is a highly classified and strictly compartmented program of electronic surveillance within the United States that President Bush directed the Department of Defense to undertake on October 4, 2001 in response to the attacks of September 11, 2001. Specifically, the program is designed to counter the threat of further terrorist attacks on the territorial United States by detecting communications that will disclose terrorist operatives, terrorist plans, or other information that can enable the disruption of such attacks, particularly the identity of al Qaeda operatives with the United States. [my emphasis]

Goldsmith used this same language on page 62 in his discussion of Youngstown.

First, the exercise of executive authority here is not several steps removed from the actual conduct of a military campaign. To the contrary, [redacted longer name of program] is an intelligence operation undertaken by the Department of Defense specifically to detect and disrupt planned attacks, largely by detecting enemy agents already within the United States. Al Qaeda has already demonstrated an ability, both on September 11 and subsequently (in such cases as Jose Padilla and Ali al-Marri) to insert agents into the United States. As explained above, the efforts [redacted shorter name of program] to intercept communications that would lead to the discovery of more such agents or other planned attacks on the United States are a core exercise of Commander-in-Chief authority in the midst of an armed conflict. [my emphasis]

Now, this reference–with its mention of an earlier discussion–is of particular interest. If I’m not mistaken, the earlier reference is redacted. In other words, it suggests that Goldsmith discussed the aspects of the program that are specifically focused on detecting additional al Qaeda figures in one of the sections that is redacted. That may be because the entire discussion about data mining in his memo is redacted, or it may be for another reason.

In any case, I find it interesting that the WP adopts language of detection without engaging in any discussion of those aspects of the program.

The Description of Congress’ Intent in FISA

While the papers’ discussion of the passage of FISA legislation could be a post of its own, there are two main differences between the papers’ treatment of the legislative record on it. In his classified opinion, Goldsmith mines every hesitation on the part of Congress and especially Attorney General Levi and Deputy Attorney General Laurence Silberman–effectively letting the executive branch stand in for the legislative history for Congress. (Though he also invokes Teddy Kennedy’s claimed doubts.) None of that shows up in the WP, suggesting that the Bush Administration was more willing to rely on partisan hacks like Silberman when they thought no one would ever see it, than they were willing to do in public. (That’s sort of odd given that Steven Bradbury used to love relying on William Rehquist’s hackish OLC opinions.)

And if I’m not mistaken, the unredacted parts of the classified memo don’t include this pretty damning admission.

That [FISA] report includes the extraordinary acknowledgment that “[t]he conferees agree that the establishment by this act of exclusive means by which the President may conduct electronic surveillance does not foreclose a different decision by the Supreme Court.” H.R. Conf. Rep. No. 95-1720, at 35, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. But, invoking Justice Jackson’s concurrence in the Steel Seizure case, the Conference Report explained that Congress intended in FISA to exert whatever power Congress constitutionally had over the subject matter to restrict foreign intelligence surveillance and to leave the President solely with whatever inherent constitutional authority he might be able to invoke against Congress’s express wishes. Id. The Report thus explains that “[t]he intent of the conferees is to apply the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure Case: ‘When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional power of Congress over the matter.’” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring));

Now, it’s possible this passage is in the redacted parts of Goldsmith’s memos (though there doesn’t appear to be a logically placed redaction for it). It’s also possible that David Kris, whom we know was criticizing drafts of the WP and who cited precisely this passage in his shredding of the WP after it was published, shamed DOJ into including it in the WP. But Goldsmith’s apparent (though not definite) choice to ignore that passage doesn’t say much for his good faith when writing the memo.

And then there is a slightly different treatment of the exclusivity clause, which says that FISA really and truly is the only way the President can collect foreign intelligence. Here’s how Kris described what DOJ did in the white paper to dismiss exclusivity.

[T]he NSA surveillance program accords with the exclusivity provision because FISA “permits an exception” to its own procedures where surveillance is “authorized by another statute, even if the other authorizing statute does not specifically amend” the exclusivity provision;

Here’s how that kind of sophism looks in practice.

To be sure, the scope of this exception is rendered less clear by the conforming amendments that FISA made to chapter 119 of title 18—the portion of the criminal code that provides the mechanism for obtaining wiretaps for law enforcement purposes. Before FISA was enacted, chapter 119 made it a criminal offense for any person to intercept a communication

except as specifically provided in that chapter. See 18 U.S.C. § 2511(1)(a), (4)(a). Section 201(b) of FISA amended that chapter to provide an exception from criminal liability for activities conducted pursuant to FISA. Specifically, FISA added 18 U.S.C. § 2511(2)(e), which provides that it is not unlawful for “an officer, employee, or agent of the United States . . . to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.” Id. § 2511(2)(e). Similarly, section 201(b) of FISA amended chapter 119 to provide that “procedures in this chapter [or chapter 121 (addressing access to stored wire and electronic communications and customer records)] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.” Id. § 2511(2)(f) (West Supp. 2005).7

The amendments that section 201(b) of FISA made to title 18 are fully consistent, however, with the conclusion that FISA contemplates that a subsequent statute could authorize electronic surveillance outside FISA’s express procedural requirements. Section 2511(2)(e) of title 18, which provides that it is “not unlawful” for an officer of the United States to conduct electronic surveillance “as authorized by” FISA, is best understood as a safe-harbor provision. Because of section 109, the protection offered by section 2511(2)(e) for surveillance “authorized by” FISA extends to surveillance that is authorized by any other statute and therefore excepted from the prohibition of section 109. In any event, the purpose of section 2511(2)(e) is merely to make explicit what would already have been implicit—that those authorized by statute to engage in particular surveillance do not act unlawfully when they conduct such surveillance.

It’s not clear whether Goldsmith engages in the same language games. Goldsmith’s discussion includes the following passage (starting on 20):

On their face, [50 USC 1809 and 18 USC 25110 make FISA, and the authorization process it requires, the exclusive lawful means for the Executive to engage in “electronic surveillance,” as defined in the Act for foreign intelligence purposes. Indeed, this exclusivity is expressly emphasized in section 2511(2)(f), which states that “procedures in this chapter or chapter 121 [addressing access to stored wire and electronic communications and customer records] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 may be conducted.[my emphasis; note, too, this is one of the paragraphs of the opinion that are clearly misclassified]

As I’ll ultimately show, this entire paragraph appears to be overclassified, suggesting the White House was trying to hide the admission that there is such a thing as an exclusivity provision. Unless I missed something, though, Goldsmith doesn’t appear to have engaged in the sophism above in the unredacted opinion. But, there’s a long redacted paragraph right after this discussion with a footnote, so it may be that DOJ just decided to hide his version of this neat trick.

In perhaps a related issue, the WP has this discussion on 18 USC 2511(2)(a)(ii) while the unredacted parts of Goldsmith don’t.

In addition, section 2511(2)(a)(ii) authorizes telecommunications providers to assist officers of the Government engaged in electronic surveillance when the Attorney General certifies that “no warrant or court order is required by law [and] that all statutory requirements have been met.” 18 U.S.C. § 2511(2)(a)(ii).9 If the Attorney General can certify, in good faith, that the requirements of a subsequent statute authorizing electronic surveillance are met, service providers are affirmatively and expressly authorized to assist the Government.

Given that the requests to the telecoms (with the exception of the March 11, 2004 one) reportedly took the form of a request under this statute–an assertion by the Attorney General that no warrant was required–I suspect that it was invoked more generally and therefore suspect it appears in one of the redacted passages of Goldsmith.

Odds and Ends

Finally, there are four details that suggest certain things about the larger program and/or the government’s beliefs about their forever everywhere war on terror. For example, Goldsmith’s discussion of Truong, another wiretap case, is more extensive than the WP. As part of it, Goldsmith includes the quote that getting warrants in a foreign case “would potentially jeopardize security by increasing ‘the chance of leaks and secrecy.'” Now, a purported claim to be worried about leaks was at the heart of the Bush Administration’s refusal to fulfill requirements on briefing Congress (I’ll discuss this more in my post on the 15 day exception). But for some reason, the government didn’t want to make this claim in a document that Congress would actually get to read.

Then in a discussion of Youngstown, Goldsmith quotes the line “[e]ven though ‘theater of war’ [may] be an expanding concept.” Again, we know the government (the Bush and Obama Administrations) like to claim the entire world is their unlimited power oyster. But it’s telling that the WP didn’t feel the need to repeat this to the Congress that it had just been caught flouting for four years.

Finally, in the WP there are two references to technical issues too classified to discuss. First, there’s a discussion of how the need for speed and agility required that Bush blow off FISA.

The second serious constitutional question is whether the particular restrictions imposed by FISA would impermissibly hamper the President’s exercise of his constitutionally assigned duties as Commander in Chief. The President has determined that the speed and agility required to carry out the NSA activities successfully could not have been achieved under FISA.18 Because the President also has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President’s most solemn constitutional obligation—to defend the United States against foreign attack.

18 In order to avoid further compromising vital national security activities, a full explanation of the basis for the President’s determination cannot be given in an unclassified document.

And then, there’s a discussion of the ways in which technical changes made FISA outdated in ways that Congress couldn’t really fix.

Third, certain technological changes have rendered FISA still more problematic. As discussed above, when FISA was enacted in 1978, Congress expressly declined to regulate through FISA certain signals intelligence activities conducted by the NSA. See supra, at pp. 18-19 & n.6.20 These same factors weigh heavily in favor of concluding that FISA would be unconstitutional as applied to the current conflict if the canon of constitutional avoidance could not be used to head off a collision between the Branches.

20 Since FISA’s enactment in 1978, the means of transmitting communications has undergone extensive transformation. In particular, many communications that would have been carried by wire are now transmitted through the air, and many communications that would have been carried by radio signals (including by satellite transmissions) are now transmitted by fiber optic cables. It is such technological advancements that have broadened FISA’s reach, not any particularized congressional judgment that the NSA’s traditional activities in intercepting such international communications should be subject to FISA’s procedures. A full explanation of these technological changes would require a discussion of classified information.

Neither of these topics appears in the unredacted parts of Goldsmith’s memo. But both are assuredly there in some form. Both technological changes and quickness are likely to appear in the entirely redacted sections after page 70 or the entirely redacted pages from 75-99.

I’m really deep in the weeds on the Jack Goldsmith memo right now (I should have a weedy post up later).

But in case you’re bored w/bmaz’s rant about the assault on Miranda rights, I thought I’d point to this TP post describing Richard Clarke suggesting that the Chamber of Commerce (funded by foreign sources, he notes) may have broken the law in targeting Chamber opponents.

Clarke denounced the scandal in no uncertain terms. Noting accurately that the Chamber “took foreign money in the last election,” a story also uncovered by ThinkProgress, Clarke said the Chamber had conspired to commit a “felony”:

FANG: Hi. You talked a lot about classifying and recognizing cyber security threats, but you mostly focused on foreign threats. I’m curious about a story that broke last month, that the US Chamber of Commerce, the world’s largest trade association, based here in DC, had contracted or attempted to contract military defense firms like HB Gary Federal, Palantir, and Berico, to develop proposals to use the same type of cyber warfare tactics normally reserved for Jihadi websites against left-wing activists, trade — labor unions, and left of center think tanks here in America. What do you think about that type of threat from a lobbyist or a corporation targeting political enemies, or perceived enemies here in the US?

CLARKE: I think it’s a violation of 10USC. I think it’s a felony, and I think they should go to jail. You call them a large trade association, I call them a large political action group that took foreign money in the last election. But be that as it may, if you in the United States, if any American citizen anywhere in the world, because this is an extraterritorial law, so don’t think you can go to Bermuda and do it, if any American citizen anywhere in the world engages in unauthorized penetration, or identity theft, accessing a number through identity theft purposes, that’s a felony and if the Chamber of Commerce wants to try that, that’s fine with me because the FBI will be on their doorstep in a matter of hours.

Now if only we had Feds anymore that would consider busting big business…

The FBI has linked to a redacted executive summary of the report some shrink contractors did on Bruce Ivins. While it is just the executive summary and even that is partly redacted, the report basically paints Bruce Ivins was a stalker which therefore makes him a possible bioterrorist.

Unfortunately for the shrinks who did the report, they start by endorsing the FBI’s now questionable anthrax theory.

Dr. Ivins acknowledged that he was the sole custodian of the “RMR-1029” flask that held the anthrax used in the attacks, and had unrestricted and unobserved access to the “hot suites” where work with anthrax could be conducted anytime day or night. From his own laboratory writings we know that the quality and spore concentration of the anthrax he produced matched that contained in the letters. In addition, he had the equipment necessary to produce the non-weaponized dried spores found in the letters.

The National Academy of Science had this to say about the source of the anthrax:

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

And this to say about whether or not anyone could comment on how the anthrax was prepared.

The committee finds no scientific basis on which to accurately estimate the amount of time or the specific skill set needed to prepare the spore material contained in the letters. The time might vary from as little as 2 to 3 days to as much as several months. Given uncertainty about the methods used for preparation of the spore material, the committee could reach no significant conclusions regarding the skill set of the perpetrator.

In other words, because the shrinks based their entire report on the claim that Ivins had the “means and opportunity” to commit the attack based on the scientific claims about the anthrax, they pretty much undermine their entire argument from the start (and undermine their claim that they had “no predispositions regarding Ivins’ guilt or innocence”).

But what I’m even more intrigued by is their apparently shoddy explanation for one of the FBI’s claims that has been subsequently debunked.

In its report on the investigation, the FBI claimed that Ivins targeted Senators Leahy and Daschle because they were pro-choice Catholics.

In 2001, members of the Catholic pro-life movement were known to be highly critical of Catholic Congressional members who voted pro-choice in opposition to the beliefs of the Catholic Church. Two of the more prominent members of Congress who fell in this category were Senator Tom Daschle, then Senator Majority Leader; and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, both recipients of the 2001 anthrax mailings.

But the claim was primarily based on his wife’s beliefs (the wife who, we now know, Ivins was trying to cheat on at every opportunity). More importantly, Ivins figured out a way to foil his wife’s beliefs after his death by mandating that if he were not cremated, then $50,000 of his estate would be donated to Planned Parenthood. In other words, the notion that Ivins targeted the two guys standing in the way of unquestioning passage of the PATRIOT Act because they are pro choice Catholics never really added up.

The shrinks, however, boldly assert they have identified the real themes that motivated Ivins.

As the Analysis section of this report explains in greater detail, Dr. Ivins had multiple motives in launching what he later called [redacted] through the mail. The key themes were revenge, a desperate need for personal validation, career preservation and professional redemption, and loss. These themes guided him not only in making the attacks, but in choosing his targets and shaping his methods.

The attacks above all enabled Dr. Ivins to gain retribution against his various perceived enemies. Some of those enemies, like Senators Daschle and Leahy, had directly incurred his wrath; others, like the New York Post, which to him represented the media and New York City, appeared to have been symbolic stand-ins for broader targets.

They explain (sort of) why Ivins might view Daschle as an enemy.

In June 2001, Senator Daschle, the Senate majority leader, sent a letter to the Department of Defense that heightened concerns about the vaccine.

But nowhere does the report provide an explanation for why Leahy would be a target. Nor why Ivins would target the other newspapers. And as all the crappy explanations for this crime do, the report apparently ignores the question of why Judy Miller received a fake version of the anthrax; particularly for conservatives, you’d think the NYT, not the Post, would be the symbol of evil decadent New York.

Now maybe the explanation of why Pat Leahy is such an evil man that Bruce Ivins allegedly tried to kill him appears in the redacted section. But at least in this summary, it appears the shrinks’ report doesn’t answer some of the most basic questions raised about the attack.

Update: Pro choice/life error fixed thanks to WO.

Let me say at the outset that the GM bailout was far, far better handled than the bankster bailouts. And as a Michigan resident whose family still has ties to the auto business, I am tremendously grateful for that bailout.

That said, this is why I have not declared mission accomplished, in spite of the successful IPO last year.

You see, no one will be able to weigh the success or failure of the GM bailout for another year or so–until such time as the cars developed entirely under the leadership team picked by a bunch of people who knew nothing about the auto industry start rolling off the lines. As I noted last year, the success of the IPO was significantly premised on a number of business decisions made by Rick Wagoner and others fired during the bailout. Wagoner deserves the credit for his emphasis on China (and places like Brazil), which is the biggest source of GM’s profit these days and was widely touted as the reason it made a good stock buy. And Bob Lutz deserves the credit for GM’s improved product line.

So we won’t know whether the bailout succeeded until we see whether the guys now in charge can make decisions that are as smart as those made by the guys fired in the bailout.

Yet, as MSNBC lays out, thus far, it looks like the finance guys Steven Rattner brought in to run a car company have, predictably, made some really stupid decisions.

[GM CEO Daniel] Akerson recently told the Wall Street Journal that a GM car was just like the can of Diet Coke he was drinking during the interview.

“It’s a consumer product,” he said. “GM has to start acting like a consumer-driven, not engineering-driven, company. We sell a consumer product — our can just costs $30,000.”

Industry insiders with a memory of the 1990s immediately blasted this view as a return to [GM]’s failed [early 1990s] strategy to commoditize a product for which a strong emotional connection is important to drive sales and to cultivate brand loyalty.

“The only difference between GM then and GM now is that this is a company that has only recently emerged from the abyss of bankruptcy, one that can ill-afford a single misstep brought upon by misguided leadership, even though it has the most competitive lineup (of vehicles) it has had in decades,” [auto writer Peter] Delorenzo said.

It’s one thing to try to sell sugar water with nothing more than emotional attachment. But so long as there are well-engineered vehicles like Hondas on the road, you can’t dismiss the importance of engineering in designing cars.

In addition, Akerson (like Ed Whitacre before him) is trying to cut the time to market for GM’s cars.

Now Akerson says speed and cost are the aspects on which he will concentrate, telling the Journal that “during World War II, GM produced tanks and equipment within four years. Why should it take four years to put a car out?”

There have, historically, been two models for cutting the time to market for cars. There’s the model Chrysler used in the late 1990s, which led to the introduction of things like the PT Cruiser that were cute but which weren’t really good cars; that’s one of the things that led to a serious decline in Chrysler’s quality. Then there’s Toyota’s quality driven approach, which has served as the standard for Ford and GM in recent years as they have accelerated their own development time frame.

But as Toyota’s recent troubles show, not even Toyota can make cars in as short a time frame as they do and ensure their quality. What makes Akerson think GM can do what Toyota can’t?

I’d say the chance GM sees real quality issues in the next several years because of Akerson’s coke-addled approach to running a car company are significant.

What MSNBC doesn’t cover–but what Zero Hedge has been tracking closely–is that GM has been dumping cars on its dealers with little apparent concern for how quickly the dealers can sell them (remember that GM makes its money when the cars enter the dealers, not when consumers drive away with one). They posted the graphic above earlier this month, but explained what was going on back in November.

It is obvious that beginning in July, GM has started an aggressive channel stuffing program whereby it offload tens of thousands of cars (over 110,000 since July) on dealer lots, hoping these will get sold somehow, at some price, all the while dealers enjoy taxpayer subsidized floorplan leases which allows them to hold nearly infinite inventory. If and when the liquidation event takes place who cares? After all the company is now public and has managed to massage it artificial sales numbers sufficiently to fool investors that there is actual end demand for its cars.

In other words, GM has been artificially keeping its sales numbers up; that’s what investors look at. But wholesale sales are way, way ahead of consumer demand.

Which is why GM started engaging in the other problem MSNBC lays out: stupid incentive programs that chip away at the already-cheapened consumer perception of the value of GM’s cars.

GM has added hefty incentives to its cars since the start of the year, offering big rebates to current owners of GM cars, no-penalty early trade-ins for currently leased GM cars and bigger rebates for users of the GM credit card. The result has been a U.S. market share of more than 21 percent, higher than the company has had in years.

Now that GM has discontinued these incentives, sales have apparently slumped, so expect Zero Hedge to show dealer inventory numbers spiking next month.

The dealer stuff may be the stupid Akerson decision that most irks me. Under cover of government-managed bankruptcy, GM put a lot of auto dealers out of business (they did so more reasonably than Chrysler, but still). GM badly needed to do this, because it had so many dealers in close proximity they necessarily had to compete on price (and couldn’t make enough to really invest back in their business).

Closing dealers was one of the things GM needed to do to eliminate a structural cause of its cheap image.

But now they’re squandering all that those closures should have given them. They’re loading dealers up with too much inventory again, which already forces them to sell on price rather than product. And then to help the dealers unload that inventory, GM is basically committing retail suicide with incentives.

So basically, Bob Lutz gave GM the products it needed to be able to compete. And now Akerson is shitting all over those products, making sure they won’t command the price in the marketplace they would be able to demand.

Ultimately, this is really going to hit GM’s profitability, so we will hear in upcoming years (again) how much more profit the Japanese and Koreans get off their cars then GM.

Far too many people have sacrificed to give GM a second shot at life: the taxpayers, the dealers, and the workers. But now some guy whom a bunch of banksters thought would be just the ticket is squandering that shot.

Here’s the last paragraph of a Politico article describing the considerable extent of AT&T’s paid influence in DC.

AT&T said Monday that it is “confident” it can secure federal approval as it presents its case for T-Mobile, and both companies signaled Monday that they hoped to wrap everything up in about a year. AT&T declined to comment on its lobbying and PAC efforts and whether those efforts would be stepped up as it pushes for merger approval.

Now, the Politico piece is worth reading just for a sense of how corrupt the upcoming approval of the merger will no doubt be.

But somehow Politico forgot to mention the other reason AT&T will be granted the right to buy T-Mobile in spite of its clear assault on key principles of competitive capitalism: because the government owes AT&T.

Or, to put it another way, AT&T and the government have become so closely entwined in their joint program spying on Americans that the government cannot be said to be an independent reviewer of AT&T’s business.

Not only that, but by having AT&T take over T-Mobile, the government will get more unfettered access to Americans’ phone records. As Chris Soghoian explains:

While it is little known to most consumers, T-Mobile is actually the most privacy preserving of the major wireless carriers. As I described in a blog post earlier this year, T-Mobile does not have or keep IP address logs for its mobile users. What this means is that if the FBI, police or a civil litigant wish to later learn which user was using a particular IP address at a given date and time, T-Mobile is unable to provide the information.

In comparison, Verizon, AT&T and Sprint all keep logs regarding the IP addresses they issue to their customers, and in some cases, even the individual URLs of the pages viewed from handsets.

While privacy advocates encourage companies to retain as little data about their customers as possible, the Department of Justice wants them to retain identifying IP data for long periods of time. Enough so that T-Mobile was called out (albeit not by name) by a senior DOJ official at a data retention hearing at the House Judiciary Committee back in January:

“One mid-size cell phone company does not retain any records, and others are moving in that direction.”

If and when the Federal government approves this deal, T-Mobile’s customers and infrastructure will likely be folded into the AT&T mothership. As a result, T-Mobile’s customers will lose their privacy preserving ISP, and instead have their online activities tracked by AT&T.

So no wonder AT&T is so confident they’ll get to do what they want, and to hell with the interests of consumers. While this deal offers zero benefit for consumers, it does give the government just what it wants.

I don’t really know precisely what days in March 2003 the CIA’s contractors waterboarded Khalid Sheikh Mohammed a total of 183 times.

But I thought about the rough timing when Dafna Linzer tweeted about this Steven Aftergood post, noting the report in the Senate Intelligence Committee’s review of what they did last Congress said they still weren’t done with their torture review.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public.

It seems to me we’re never going to see that report until after the 8 year statute of limitations on torture expire for everything described in the report that clearly exceeded John Yoo’s expansive interpretation of what constitutes torture. And we’re sure as hell not going to get a report on the death threats they illegally used with Abd al Rahim al-Nashiri just as DOD is about to charge him in a military commission.

But they might have to “keep working” on it for a couple more years: I’m betting the government used water “dousing” in 2004 in an illegal manner, too.

It’s a brand new kind of job security for government workers, the kind of “work” they have to do to make sure the statutes of limitation expire on the crimes they’re investigating while they’re investigating them.

Our country apparently has a new standard for justice: innocent until a secret study–headed by a guy who may have had some responsibility for screwing up an earlier investigation and conducted entirely after your death–finds you were psychologically capable of committing a crime.

The LAT reports on a just such a report conducted on Bruce Ivins. It was initiated in late 2009 (remember, Ivins died in July 2008), at the suggestion of Dr. Gregory Saathoff, a psychiatrist who consulted on the investigation itself. And it was completed on August 23, 2010. Among the details the report apparently found that should have disqualified Bruce Ivins from having the security clearance he did is the fact that he put question marks next to some questions on a form he filled out in 1987 (those question marks should have raised eyebrows, definitely, but it’s funny they’re looking at them in this context now).

Mostly, though, LAT writer David Willman seems to suggest (and I’m not sure how much of this is speculation, off the record reporting, or reading the report itself) that the redacted parts of the report show that Ivins’ obsession with the KKG sorority in the 1980s should have disqualified him from getting clearance.

Some of the “disqualifying” behaviors that the panel said should have prompted Army officials to reconsider Ivins’ fitness to work in a secure biodefense facility were redacted from the report by Justice Department lawyers because of privacy concerns. However, based on investigative documents made public more than a year ago by the FBI and on remarks by Ivins’ acquaintances, this much is known:

Ivins became obsessed with Kappa Kappa Gamma in the 1960s, when a member of the sorority turned him down for a date. In the late 1970s and early 1980s, Ivins twice burglarized houses affiliated with the sorority.

Over the same period, he tormented a former member of the sorority, Nancy Haigwood, by stealing her laboratory notebook, which was integral to her pursuit of a doctoral degree, and by vandalizing her residence. Ivins was a postdoctoral researcher at the University of North Carolina in the 1970s when Haigwood was a graduate student there.

“Despite criminal behavior and sabotage of his colleague’s research,” the panel said, “Dr. Ivins was hired by USAMRIID and received a security clearance, allowing him to work with potential weapons of mass destruction.”

Now, I believe the report itself had as its stated goal assessing whether Ivins should have been able to retain his clearance. Still, the fact that people are still using Ivins’ KKG obsession as “proof” that he was the anthrax killer–without offering any explanation why that obsession led him to allegedly mail anthrax from outside of a KKG office 3 hours and 25 minutes from his home rather than mailing it from the actual KKG chapters closer to his home–is just blind faith.

Willman also describes the National Academy of Sciences report on the anthrax this way, to fluff up the case against Ivins.

Last month, a committee appointed by the National Academy of Sciences at the FBI’s request concluded that the scientific evidence implicating Ivins was not definitive but “is consistent with and supports” the bureau’s finding of a genetic match between his batch of anthrax and the material in the letters.

As Jim White has pointed out, the scientific panel was not so convinced–and provided a great deal of evidence as to why Ivins probably couldn’t have made the anthrax in his lab at Ft. Detrick.

Overall, the importance of the primary conclusion of the NAS report cannot be overstated (p. 4 of the report as marked, all references will use internal page numbers, not pdf numbers from my pre-publication copy):

It is not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone.

It’s bad enough that DOJ is using what was intended to be a lessons learned study (to prevent bioterrorism in the future, even though we’re not sure Ivins committed this crime; note that DOJ closed the case during the period of this study) to try to shore up their shaky case against Ivins.

But what really pisses me off is that DOJ was off contracting secret studies at the same time as it was repeatedly refusing to accept an independent review of their work on the case. Pat Leahy, one of the targets of the attack, declared the case against Ivins to be inadequate in August 2008. Rush Holt tried to get an independent review of the case in March 2009. Jerry Nadler did the same in March 2010. In that same month, Obama actually issued a veto threat to prevent Congress from insisting on doing an independent review of this investigation.

And before they started this study, apparently, in September 2009, DOJ outright refused to submit to an independent review of the case because it might hamper ongoing litigation in the case.

Because of the importance of science to this particular case, investigative steps were often taken to address leads developed by newly evolved science. In addition, the significance of information or evidence we acquired often took on new or enhanced meaning as scientific advances were made. Consequently, a review of the scientific aspect of this case would be the logical first step. There is also ongoing criminal and civil litigation concerning the Amerithrax investigation and information derived therefrom, and an independent review of the FBI’s “detective work” at this time could adversely affect those proceedings.

So that’s what DOJ has come to: secret studies to try to prove their case, but under no circumstances an actual review of all the things FBI did wrong that might reveal that they still haven’t found the killer.

Ha’aretz reports that Israel’s Military Intelligence set up a group several months ago dedicated to collecting intelligence on non-Israeli leftist organizations that criticize Israel.

Military Intelligence is collecting information about left-wing organizations abroad that the army sees as aiming to delegitimize Israel, according to senior Israeli officials and Israel Defense Forces officers.

The sources said MI’s research division created a department several months ago that is dedicated to monitoring left-wing groups and will work closely with government ministries.

[snip]

Military Intelligence officials said the initiative reflects an upsurge in worldwide efforts to delegitimize Israel and question its right to exist.

“The enemy changes, as does the nature of the struggle, and we have to boost activity in this sphere,” an MI official said. “Work on this topic proceeds on the basis of a clear distinction between legitimate criticism of the State of Israel on the one hand, and efforts to harm it and undermine its right to exist on the other.”

The new MI unit will monitor Western groups involved in boycotting Israel, divesting from it or imposing sanctions on it. The unit will also collect information about groups that attempt to bring war crime or other charges against high-ranking Israeli officials, and examine possible links between such organizations and terror groups.

Now aside from thinking generally that this is a bad idea, I’m particularly concerned about whether or not the US will share intelligence with Israel on such issues.

For example, the initiative says it will look for ties between groups critical of Israel and terrorist groups. How is that different from the investigation of a bunch of peace activists’ ties with humanitarian organizations which has suggested the peace activists have ties to Hezbollah? And since we know OLC gave the President and certain Federal Officials the green light to ignore privacy protections on the sharing of grand jury information in the PATRIOT Act, does that mean our government will readily share the information they’re collecting in that grand jury with the Israelis?

And to some degree, the Israelis wouldn’t even have to rely on intelligence sharing, per se. In his book The Shadow Factory, James Bamford spent some time detailing the Israeli ties to key companies in our electronic surveillance, companies like Verint, which intercepts and stores communication, PerSay, which does voice mining, NICE, which does voice content analysis, and Narus, which enables real-time surveillance on telecom lines. Between Verint and Narus, Bamford writes,

Thus, virtually the entire American telecommunications system is bugged by two Israeli-formed companies with possible ties to Israel’s eavesdropping agency–with no oversight by Congress.

And we can find such ties closer to home, too. The company that had been paid by Pennsylvania to track potential threats to critical infrastructure which ended up tracking First Amendment protected speech, the Institute of Terrorism Research and Response, is an Israeli company. Among other groups it tracked (one key focus was anti-fracking groups) were peace organizations–precisely the kind of group that might oppose Israel’s actions in Gaza.

The concern that federal and state entities have been paying companies with Israeli ties to collect information on groups that might include the same peace groups targeted by this new initiative in Israel is one thing.

But think of the other logical possibility. Our federal and state governments usually show some embarrassment when they get caught collecting intelligence on peace groups (though that doesn’t seem to stop it from happening over and over again). What will stop those same government entities from asking Israel to collect such information?

As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA.

But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever war) is to sustain the claim that we were still at war in 2004, given that so many of the troops had been redeployed to Iraq. And to sustain the claim that the threat to the US from al Qaeda was sufficiently serious to justify eviscerating the Fourth Amendment.

So, they used politicized intelligence and (accidentally) propaganda to support it.

Use of the Pat Tillman Propaganda to Support Case of Ongoing War

As I’ve noted, Jack Goldsmith made the unfortunate choice to use an article reporting Pat Tillman’s death as his evidence that the war in Afghanistan was still going on.

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

That article was not really about the ongoing war in Afghanistan; rather, it told a lie, the lie that war hero Pat Tillman had died in combat, rather than in a friendly fire incident.

Pat Tillman, the Arizona Cardinals safety who forfeited a multimillion dollar contract and the celebrity of the National Football League to become a U.S. Army Ranger, was killed in Afghanistan during a firefight near the Pakistan border on Thursday, U.S. officials said yesterday.

Tillman, 27, was killed when the combat patrol unit he was serving in was ambushed by militia forces near the village of Spera, about 90 miles south of Kabul, the Afghan capital. Tillman was hit when his unit returned fire, according to officials at the Pentagon. He was medically evacuated from the scene and pronounced dead by U.S. officials at approximately 11:45 a.m. Thursday. Two other U.S. soldiers were injured and one Afghan solider fighting alongside the U.S. troops was killed.

The death of Tillman, the first prominent U.S. athlete to be killed in combat since Vietnam, cast a spotlight on a war that has receded in the American public consciousness. As Iraq has come into the foreground with daily casualty updates, the military campaign in Afghanistan has not garnered the same attention, though there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda.

Now, I say the choice was unfortunate because, in spite of the fact that Tillman’s commanding officers knew within 24 hours of his death on April 22 that it was a friendly fire incident, in spite of the fact that General Stanley McChrystal sent an urgent memo within DOD on April 29 that the death was probably friendly fire, and in spite of the fact that the White House learned enough about the real circumstances of Tillman’s death by May 1 to make no claims about how he died in a Bush speech, there’s no reason to believe that Jack Goldsmith would have learned how Tillman died until it was publicly announced on May 29, 2004.

In other words, it was just bad luck that Goldsmith happened to use what ultimately became an ugly propaganda stunt as his evidence that the Afghan war was still a going concern.

Producing Scary Memos to Justify Domestic Surveillance

I’m less impressed with the description of the role of threat assessments that we’re beginning to get.

Goldsmith’s memo includes an odd redaction in its description of the threat assessment process.

As the period of each reauthorization nears an end, the Director of Central Intelligence (DCI) prepares a memorandum for the President outlining selected current information concerning the continuing threat that al Qaeda poses for conducting attacks in the United States, as well as information describing the broader context of al Qaeda plans to attack U.S. interests around the world. Both the DCI and the [redacted] review that memorandum and sign a recommendation that the President should reauthorize [redacted name of program] based on the continuing threat posed by potential terrorist attacks within the United States. That recommendation is then reviewed by this Office. Based upon the information provided in the recommendation, and also taking into account information available to the President from all sources, this Office assess whether there is a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to authorize the warrantless involved in [redacted, probably name of program]. [my emphasis]

Now, there are any number of possibilities for the person who, in addition to the DCI, reviewed the threat assessment: John Brennan and others who oversaw the threat assessment are one possibility, David Addington or Dick Cheney are another.

But the IG Report provides another possibility or two that makes this whole passage that much more interesting:

The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al Qaeda and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President’s Authorizations of the PSP.

The Director of the Central Intelligence’s (DCI) Chief of Staff was the initial focus point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA’s terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.

[snip]

NCTC personnel involved in preparing the threat assessments [beginning in 2005] told the ODNI OIG that the danger of a terrorist attack described in the threat assessments was sobering and “scary,” resulting in the threat assessments becoming known by ODNI and IC personnel involved in the PSP as the “scary memos.” [my emphasis]

This passage names one entity personally who reviewed what would later become known as the “scary memos:” the Office of General Counsel. Of course it also mentions an unidentified “senior White House official” (remember, there was a classified version of this report that might have described who it was in more detail) who provided the DCI’s Chief of Staff with the language to use for the authorization.

It’s the function of OGC here I find particularly interesting (and which might provide a reason why DOJ chose to redact mention of OGC’s rule on Goldsmith’s memo): lawyers at CIA reviewed the threat assessment “to determine whether they contained … a compelling case for reauthorization of the PSP. If [such a case] was lacking, an OGC attorney would request that the analysts provide additional threat information make revisions to the draft memoranda.”

So let’s be clear what these two descriptions of the scary memos tell us. It is clear that the entire claim that surveillance in the US was justified was based on the argument that there were dangerous people here in the US who were plotting attacks, in the US. It seems that, either for PR reasons or legal ones (heh), the White House (or maybe DOJ) took this requirement pretty seriously. The IG Report invokes the possibility that “a case for reauthorization” might be “lacking,” suggesting someone, at least, wanted to see proof of the threat.

But look at what constituted that proof.

First, a bunch of CIA analysts were asked to do “objective analysis” of the current terrorist threat, focusing on threats to the “US homeland.” These analysts, at least for some time, had no idea how their report would be used. After they prepared the report, the DCI COS slapped language that Cheney Addington someone at the White House had told them to slap onto the report, presumably creating the incorrect documentary appearance that the analysts who did the “objective analysis” had bought off on the conclusion that the terrorists they had discussed had the “capability and intention” to commit further attacks in the US, all of which justified vacuuming up all the international phone traffic coming into the US.

Apparently, on at least some occasions, the “objective analysis” did not sufficiently back up the claims slapped on courtesy of Cheney Addington someone at the White House; it was OGC’s job to make sure it did. Mind you, if the “objective analysis” did not back up the conclusion, OGC did not issue a report saying, “sorry, Cheney, you’re going to have stop wiretapping Americans,” but instead, they found information to fluff out the request. Perhaps they went back to the “objective analysts” and told them they had to fearmonger some more about domestic threats. Perhaps they simply “ma[de] revisions” to the “objective analysis” themselves. [Update: Mary has convinced me I misread this–that the analysts, not the OGC lawyers–would make the changes.]

But the result was, apparently, that every time the program was up for renewal, CIA produced a report that claimed there was sufficient danger to the US domestically that they had to continue wiretapping Americans.

As Goldsmith describes, there was one more level of review done within OLC. OLC, you see, did not limit itself to what appeared in writing in the scary memos. Instead, it sometimes supplemented the threats described in the scary memos by considering “information available to the President from all sources.” Nothing says the additional information that came from the President was ever documented. Or vetted by actual intelligence professionals. But OLC could and apparently did invoke it in finding the warrantless wiretapping program necessary.

This is, Goldsmith tells us, the review process they used to ensure “relevant constitutional standards of reasonableness under the Fourth Amendment.”

It was, of course, a classic case of politicized intelligence, a Team B operating in secret, serving as the only check on abuse of the Fourth Amendment.

“All Sources,” Including Tortured Confessions

The IG Report says the “objective” analysts “drew upon all sources of intelligence” to write their scary memos.

Goldsmith says OLC also took “into account information available to the President from all sources.”

And he also says this:

As explained in more detail below, since the inception of [redacted program name] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. These strategies are at various stages of planning and execution, and some have been disrupted. They include plans for [several lines redacted; my emphasis]

Ahem.

Before I point out the obvious problem with relying “particularly” on detainee interrogations to justify the illegal wiretap program, let me note that the passage where Goldsmith “explain[s] in more detail below” the intelligence that has justified the scary memos does not appear in the unredacted parts of the memo. So between the several lines redacted here, and what must be Goldsmith’s more extensive discussion redacted somewhere else in this memo, there’s a whole bunch of alleged threats to the US that DOJ doesn’t really want us to read.

But we don’t have to guess, entirely, at what kind of threats to the US the scary memos were reporting that detainees had said. We can refer to one of Dick Cheney’s two favorite reports on detainee reporting, the report “Khalid Sheikh Muhammad: Preeminent Source on Al-Qa’ida” released on July 17, 2004, not long after Goldsmith wrote this memo. Here’s what that report said about threats to the US:

KSM steadfastly maintains that his overriding priority was to strike the United States but says that immediately after 11 September he realized that a follow-on attack in the United States would be difficult because of new security measures. As a result, KSM’s plots against the US homeland from late 2001 were opportunistic and limited, including a plot to fly a hijacked plane into the tallest building on the US West Coast and a plan to send al-Qa’ida operative and US citizen Jose Padilla to set off bombs in high-rise apartment buildings in a US city.

[snip]

Striking the United States. Despite KSM’s assertion that a post-11 September attack in the United States would be difficult because of more stringent security measures, he has admitted to hatching a plot in late 2001 to use Jemaah Islamiya (JI) operatives to crash a hijacked airliner into the tallest building on the US West Coast. From late 2001 until early 2003, KSM also conceived several low-level plots, including an early 2002 plan to send al-Qa’ida operative and US citizen Jose Padilla to set off bombs in high-rise apartment buildings in an unspecified major US city and an early 2003 plot to employ a network of Pakistanis–including Iyman Faris and Majid Khad–to target gas stations, railroad tracks, and the Brooklyn Bridge in New York. KSM has also spoken at length about operative Ja’far al-Tayyar, admitting that al-Qa’ida had tasked al-Tayyar to case targets in New York City in 2001.

[snip]

KSM stated that he had planned a second wave of hijacking attacks even before September 2001 but shifted his aim from the United States to the United Kingdom because of the United States’ post-11 September security posture and the British Government’s strong support for Washington’s global war on terror.

So the guy whom Dick Cheney himself considered to be the best detainee source on al Qaeda’s plans at the time Goldsmith wrote this memo said that the threats to the US consisted of the Library Tower plot that was canceled before 2002, Jose Padilla’s purported dirty bomb plot that ultimately amounted to filling out an application to join al Qaeda by the time it got to the courts, Iyman Faris’ plot to bring down the Brooklyn Bridge with a blowtorch, and Ja’far al-Tayyar, who may have cased NY subways three years before Goldsmith wrote the memo (and ultimately may have had ties with Najibullah Zazi). But actually–Cheney’s favorite detainee source kept insisting–he had given up on attacking the US, and had instead focused on the UK.

Nevertheless, detainee reporting like this served as one particularly important source, Goldsmith tells us, for the scary memos that created the justification for illegally wiretapping American citizens.

One more thing. Goldsmith published this report on May 6, 2004. The very next day, CIA’s Inspector General would publish the report that Goldsmith had been discussing for weeks, which showed, among other things, that CIA’s “preeminent source” had been waterboarded 183 times. CIA’s IG would also raise questions about the efficacy of the intelligence (though he did say it revealed plots in the US). Goldsmith knew of the problems in the detainee interrogation program when he wrote about the role of detainee interrogations in this memo.

They tortured the detainees to get claims of plots against the US. And then–even though the detainees insisted they had stopped planning against the US–they used intelligence about canceled or absurd plots to write scary memos so they could continue to use their illegal wiretap program. Mind you, now they use entrapment to do the same thing. But back in the day KSM’s tortured confessions gave Dick Cheney his excuse to wiretap you.

Congratulations to Barton Gellman, whose book on Cheney’s abuse of the Constitution, Angler, will serve as the basis for an HBO miniseries.

HBO has optioned the book Angler: The Cheney Vice Presidency by Pulitzer-Prize winning journalist Barton Gellman for a miniseries to be executive produced by Paula Weinstein.

The mini, which will be based on the bestselling book and the Frontline documentary The Dark Side, tells the story of Richard Bruce Cheney from his early days as Donald Rumsfeld’s protégé in the Nixon administration, to the nation’s youngest Chief of Staff under President Ford, to serving as Secretary of Defense under George H.W. Bush, through two controversial terms as Vice President under President George W. Bush. According to the producers, the project will center on Cheney’s “single-minded pursuit of enhanced  power for the Presidency (that) was unprecedented in the nation’s history.”

May the story of this abusive thug be just as popular as the Sopranos.

Gellman is on twitter taking suggestions for a lead to play Cheney. Me, I’m more interested in finding the perfect actress to play the Constitution, some damsel in distress type who needs to be saved from the evil villain.

Since I’m a pop culture failure, I’m happy to hear your suggestions in comments.