The 2nd Circuit has just ruled that the government must release a redacted version of the targeted killing memo to the NYT and ACLU, as well as Vaughn documents listing the documents pertaining to the Anwar al-Awlaki killing.
The central jist of the argument, written by Jon Newman, is that the White Paper first leaked selectively to Michael Isikoff and then released, under FOIA, to Jason Leopold (Leopold FOIAed after reading about it in this post I wrote), amounts to official disclosure of the information in the OLC memo which, in conjunction with all the other public statements, amounts to a waiver of the government’s claim that the OLC memo amounted to pre-decisional deliberations.
This argument starts on page 23, in footnote 10, where the opinion notes that the White Paper leaked to Mike Isikoff was not marked draft, while the one officially released to Leopold was.
The document disclosed to [Leopold] is marked “draft”; the document leaked to Isikoff is not marked “draft” and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked “draft.”
The opinion strongly suggests the government should have released the Mike Isikoff — that is, the one not pretending to be a draft — version to ACLU.
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
Then, having established that the document leaked to Isikoff is the same as the document released to Leopold, which was officially released, the opinion describes the DOD opinion at issue, a 41 page classified document dated July 16, 2010 signed by David Barron.
An almost entirely redacted paragraph describes the content of the memo.
The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].
A subsequent passage explains that parts II through VI provide the legal reasoning.
FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552b. The Government’s waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed.
And a still later passage reveals that the remaining section — part I — discusses intelligence gathering activities, presumably as part of a discussion of the evidence against Anwar al-Awlaki.
Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities.
So while the paragraph describing the content of the Memo is redacted, we know the first section lays out the evidence against Awlaki, followed by 5 sections of legal reasoning.
The redacted paragraph I included above, describing the content of the Memo, is followed immediately by a paragraph addressing the content of the White Paper.
The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted]
The first redaction here probably states that the White Paper parallels the OLC memo. The second probably describes the key differences (besides length and the absence of the underlying evidence against Awlaki in the White Paper). And that second redaction is followed by a discussion describing the White Paper’s extensive passage on 18 US 1119, and lack of any discussion of 18 USC 956, a law prohibiting conspiracies to kill, maim, or kidnap outside the US.
The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted].
In other words, the big difference in the legal reasoning is that the still-secret Memo argues that the US plot against Awlaki was not an illegal conspiracy to kill him, in addition to not being a murder of an American overseas.
Conspiracies to conduct extralegal killings of terrorists are not the same as conspiracies by terrorists to kill, apparently.
Having laid out that the non-draft Isikoff memo is the same as the officially-released Leopold memo, and the officially-released Leopold memo lays out the same legal reasoning as the OLC Memo, the opinion basically says the government’s claims it hasn’t already released the memo are implausible.
As the District of Columbia Circuit has noted, “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear that the justification must be “logical” and “plausible” “in protecting our intelligence sources and methods from foreign discovery.”
With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.” The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
Clearly, throughout its treatment of the Awlaki killing, the Obama Administration has attempted to be able to justify its killing of an American citizen publicly without bearing the risk of defending that justification legally.
And they almost got away with it. Until they got a little too loosey goosey with the selective leaks when they (someone) leaked the White Paper to Isikoff.
Ultimately, though, their selective leaking was the undoing of their selective leaking plan.
Steve Aftergood reports that James Clapper has done what Congress refused to do: forbid any unauthorized contact between Intelligence Community staffers and any member of an unbelievably broadly defined media. The order requires IC employees to obtain authorization for contacts with the media, and report any unplanned contacts.
3. Contact by IC employees with the media on covered matters must be authorized by their IC element.
a. Within the IC, only the head or deputy head of an IC element, the designated public affairs official, and other persons designated in agency policy or authorized by that public affairs official are authorized to have contact with the media on covered matters, except as provided below.
b. IC employees, as defined in EO 12333, Section 3.5(d), not designated in accordance with Section D.3.a, must obtain authorization for contacts with the media on covered matters through the office responsible for public affairs for their IC element, and must also report to that office unplanned or unintentional contact with the media on covered matters.
4. No substantive information should be provided to the media regarding covered matters in the case of unplanned or unintentional contacts. Authorization for a particular contact on covered matters does not constitute authorization for additional media engagement.
And here’s the definition of “media,” which would include civil rights organizations and some attorneys.
4. For purposes of this Directive, media is any person, organization, or entity (other than Federal, State, local, tribal and territorial governments):
a. primarily engaged in the collection, production, or dissemination to the public of information in any form, which includes print, broadcast, film and Internet; or
b. otherwise engaged in the collection, production, or dissemination to the public of information in any form related to topics of national security, which includes print, broadcast, film and Internet.
Employees found to have violated this policy may lose their security clearance and/or their employment.
I guess James Clapper, whose credibility is already shot to shit for lying to Congress and spending 10 months uttering transparent lies, wants to doom the IC’s credibility entirely.
After all, from this point forward, we can assume that any statement citing an IC source is approved propaganda. Thanks for clearing that up, Clapper.
As I noted in this post, the declaration submitted in EFF’s FOIA for Section 215 by ODNI’s Jennifer Hudson is remarkably revealing. I’m particularly intrigued by these comments about the financial dragnet order released on March 28.
A FISC Supplemental Order in BR 10-82, dated November 23, 2010 and consisting of two pages, has been withheld in part to protect certain classified and law enforcement sensitive information. The case underlying BR 10-82 is an FBI counterterrorism investigation of a specific target. That investigation is still pending. Here, in the course of a pending counterterrorism investigation, the FBI sought authorization under the FISA to obtain financial records, under the FISA’s business records provision, pertaining to the target of the investigation and in fact obtained such authorization.
Here, in the course of a pending counterterrorism investigation, the FBI sought authorization under the FISA to obtain certain financial records. The FISC Supplemental Order, which was issued in relation to its authorization for such collection, was thus compiled for law enforcement purposes, in furtherance of a national security investigation within the FBI’s authorized law enforcement duties.
Here, the FBI has determined that the release of the final paragraph of the order, which describes certain requirements reflecting the FBI’s particular implementation of the authority granted by the FISC, could reasonably be expected to adversely impact the pending investigation and any resulting prosecutions. Release of this paragraph would reveal the specific and unique implementation requirements imposed on the FBI under this FISA-authorized collection during a particular time period. It is unclear what and how much the target might already know about the FBI’s investigation. However, as more fully explained in my classified ex parte, in camera declaration, there is reason to believe that the target or others knowledgeable about the nature and timing of the investigation could piece together this information, the docket number, the dates of the collection, and other information which has already been released or deduced to assemble a picture that would reveal to the target that the target was the subject of a particular type of intelligence collection during a specific time period, and by extension, that the target’s associates during that period may have been subject to similar intelligence collections. This could lead the target to deduce the scope, focus, and direction of the FBI’s investigative efforts, and potentially any gaps in the collections, from which the target could deduce times when the target’s activities were “safe.” [my emphasis]
The bolded section says that certain people — the target, but also “others knowledgeable about the nature and timing of the investigation” — could put the financial dragnet request together with other information released or deduced to figure out that the target and his associates had had their financial data collected.
Gosh, that’s like waving a flag at anyone who might be “knowledgeable about the nature of the investigation.”
What counterterrorism investigation has generated sufficient attention such that not only the target, but outsiders, would recognize this order pertains the investigation in question? The investigation would be:
The CIA & etc. Money Order Orders
One obvious possibility is the generalized CIA investigation into Western Union and international money transfers reported by WSJ and NYT last year. While both stories said the CIA got these orders, I suggested it likely that FBI submitted the orders and disseminated the information as broadly as FBI’s information sharing rules allowed, not least because CIA has no analytical advantage on such orders, as NSA would have for the phone dragnet.
There are two reasons this is unlikely. First, there’s the timing. The WSJ version of the story, at least, suggested this had been going on some time, before 2010. If that’s the case, then there’s no reason to believe a new order in 2010 reviewed this issue. And while I don’t think the 2010 order necessarily indicates the first financial 215 order (after all, it took 2.5 years before FISC weighed the equivalent question in the phone dragnet), it is unlikely that this order comes from an existing program.
That’s true, too, because this seems to be tied to a specific investigation, rather than the enterprise counterterrorism investigation that underlies the phone dragnet (and presumably the CIA program). So while this practice generated enough attention to be the investigation, I doubt it is.
The Scary Car Broker Plot
Then there’s what I call the Scary Car Broker Plot, which I wrote about here. Basically, it’s a giant investigation into drug trafficking from Colombia through Western Africa that contributes some money to Hezbollah and therefore has been treated as a terror terror terror investigation when in reality it is a drug investigation. Treasury named Ayman Joumaa, the ultimate target of that investigation, a Specially Designated Trafficker in February 2011, so presumably the investigation was very active in November 2010, when FISC issued the order. The case’s domestic component involves the car broker businesses of a slew of (probably completely innocent) Lebanese-Americans, who did business with the larger network via wire transfers.
The Car Buyers also received wire transfers for the purpose of buying and shipping used cars from other account holders at the Lebanese Banks (“Additional Transferors”), including the OFAC-designated Phenicia Shipping (Offshore); Ali Salhab and Yasmin Shipping & Trading; Fadi Star and its owners, Mohammad Hammoud and Fadi Hammoudi Fakih for General Trade, Khodor Fakih, and Ali Fakih; and Youssef Nehme.
Perhaps most interesting, the government got at these businessmen by suing them, rather than charging them, which raised significant Fifth Amendment Issues. So between that tactic and Joumaa’s rather celebrated status, I believe this is a possible case. And the timing — from 2007 until 2011, when Joumaa got listed — would certainly make sense.
All that said, this aspect of the investigation was made public in the suit naming the car brokers, so FBI would be hard-pressed to claim that providing more details would compromise the investigation.
HSBC’s Material Support for Terrorism
Then there’s a very enticing possibility: that this is an investigation into HSBC for its material support for terrorism, in the form of providing cash dollars to the al Rajhi bank which went on to support terrorist attacks (including 9/11).
HSBC’s wrist slap for money laundering is one of the most noted legal atrocities in recent memory, but most people focus on the bank’s role laundering money for drug cartels. Yet as I’ve always emphasized, HSBC also played a key role in providing money to al Qaeda-related terrorists.
As the Permanent Subcommittee on Investigations’ report made clear, HSBC’s material support for terror continued until 2010.
After the 9-11 terrorist attack in 2001, evidence began to emerge that Al Rajhi Bank and some of its owners had links to financing organizations associated with terrorism, including evidence that the bank’s key founder was an early financial benefactor of al Qaeda. In 2005, HSBC announced internally that its affiliates should sever ties with Al Rajhi Bank, but then reversed itself four months later, leaving the decision up to each affiliate. HSBC Middle East, among other HSBC affiliates, continued to do business with the bank.
Due to terrorist financing concerns, HBUS closed the correspondent banking and banknotes accounts it had provided to Al Rajhi Bank. For nearly two years, HBUS Compliance personnel resisted pressure from HSBC personnel in the Middle East and United States to resume business ties with Al Rajhi Bank. In December 2006, however, after Al Rajhi Bank threatened to pull all of its business from HSBC unless it regained access to HBUS’ U.S. banknotes program, HBUS agreed to resume supplying Al Rajhi Bank with shipments of U.S. dollars. Despite ongoing troubling information, HBUS provided nearly $1 billion in U.S. dollars to Al Rajhi Bank until 2010, when HSBC decided, on a global basis, to exit the U.S. banknotes business. HBUS also supplied U.S. dollars to two other banks, Islami Bank Bangladesh Ltd. and Social Islami Bank, despite evidence of links to terrorist financing. Each of these specific cases shows how a global bank can pressure its U.S. affiliate to provide banks in countries at high risk of terrorist financing with access to U.S. dollars and the U.S. financial system. [my emphasis]
Now, the timing may match up here, and I’d really love for a bankster to be busted for supporting terrorism. Plus, an ongoing investigation into this part of HSBC’s crimes might explain why Lanny Breuer said nothing about it when he announced the settlement with HSBC. But I doubt this is the investigation. That’s because former Treasury Undersecretary for Terrorism and Financial Intelligence Stuart Levey moved to HSBC after this point in time, in large part in a thus-far futile attempt to try to clean up the bank. And I can’t imagine a lawyer could ethically take on this role while (presumably) knowing about such seizures. Moreover, as the PSI report made clear, there are abundant other ways to get at the kind of data at issue in the HSBC investigation without Section 215 orders.
Who am I kidding? This DOJ won’t ever really investigate a bank!
WikiLeaks the Aider of Al Qaeda
I realize these three possibilities do not exhaust the list of sufficiently significant and sufficiently old terrorism investigations that might be the target named in the order. So I’m happy to hear other possibilities.
But there is one other investigation that is a near perfect fit for almost all the description provided by Hudson: WikiLeaks.
As I’ve reported, EPIC sued to enforce a FOIA for records the FBI has on investigations into WikiLeaks supporters. The FOIA asked for and FBI did not deny having, among other things, financial records.
All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks.
In addition to withholding information that they apparently have because of an ongoing investigation (though the Judge has required the government to confirm it is still ongoing by April 25), the government also claimed exemption under a statute that they bizarrely refused to name. I speculated four months before Edward Snowden’s leaks that that statute was Section 215.
And the timing on this investigation is a perfect fit. On November 3, 2010, Joint Terrorism Task Force Officer Darin Louck seized David House’s computer as he came across the border from Mexico. While House refused to give the government his encryption passwords, the seizure makes it clear FBI was targeting WikiLeaks supporters. Then, according Alexa O’Brien, on November 21, 2010, a report on the upcoming Cablegate release was included in President Obama’s Daily Brief. The government spent the weeks leading up to the first releases in Cablegate on November 28, 2010 scrambling to understand what might be in them. On December 4, PayPal started refusing donations to WikiLeaks. And on December 6, Eric Holder stated publicly he had authorized extraordinary investigative measures “just last week.”
Nor would he say whether the actions involved search warrants, requests under the Foreign Intelligence Surveillance Act, which authorizes wiretaps or other means, describing them only as “significant.”
“I authorized just last week a number of things to be done so that we can, hopefully, get to the bottom of this and hold people accountable as they should be,” he said.
December 6 was a Monday and technically Tuesday, November 23 would have been 2 weeks earlier, just 2 days before Thanksgiving. But a Section 215 order doesn’t require AG approval, and indeed, dragnet orders often generate leads for more intrusive kinds of surveillance.
Moreover, according to Hudson’s declaration, this order did precisely what EPIC’s FOIA seems to confirm FBI did, investigate not just Julian Assange, but also his associates (also known as supporters), including WikiLeaks donors.
The only thing — and it is a significant thing — that would suggest this guess is wrong is Hudson’s description of this as a “counterterrorism” investigation and not a “counterespionage” investigation (which is how Holder was discussing it in December 2010).
But that doesn’t necessarily rule WikiLeaks out. As noted above, already by early November 2010, the FBI had JTTF agents involved in the investigation. And central to the government’s failed claim that Chelsea Manning had aided the enemy was that she had made the Afghan war logs available knowing (from the DIA report she accessed) that the government worried about al Qaeda accessing such things, and that some Afghan war logs were found at Osama bin Laden’s compound. So the government clearly has treated its WikiLeaks investigation as a counterterrorism investigation.
Moreover, all Hudson’s declaration claims is that the government currently considers this a counterterrorism investigation. Section 215 can be used for counterintelligence investigations (as I’ve noted over and over). Since the Osama bin Laden raid revealed al Qaeda had accessed cables, the government has maintained that it does involve al Qaeda. So it may be that Hudson’s reference to the investigation as a counterterrorism investigation only refers to its current status, and not the status used to obtain the order in 2010.
That said, Hudson also provided a classified version of her statement to Judge Yvonne Gonzales Rogers, and I can’t imagine she’d try to pitch the WikiLeaks case as a counterterrorism one if a judge actually got to check her work. But you never know!
It’s likely that I’m forgetting a very obviously publicly known counterterrorism investigation.
But I think it possible that either the Scary Car Broker plot or WikiLeaks is the target named in the order.
Yesterday, in announcing the public release of documents relating to CIA’s publication of a Russian edition of Dr. Zhivago, the CIA bragged (justifiably) about its Cold War success in making books Warsaw Pact governments had banned available within those countries.
In a memo dated April 24, 1958 a senior CIA officer wrote: “We have the opportunity to make Soviet citizens wonder what is wrong with their government when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country [and] in his own language for his people to read.”
Obtaining, publishing, and distributing banned books like Doctor Zhivago was an important Cold War-era success story for the CIA.
Even as CIA was declassifying the documents underlying Peter Finn’s book on this topic, the 9/11 Gitmo trial was being stalled, once again, by issues arising from the Court’s fragile Constitutional foundation.
The issue, this time, makes for ironic comparison with CIA’s boasts of making banned texts available to societies where the government was too fragile to release such texts.
On Monday, the 9/11 defense lawyers revealed that their Defense Security Officer had been recruited as an informant by the FBI as part of an investigation into how an unclassified 36-page tract written by Khalid Sheikh Mohammed became available to the HuffPo.
The Gitmo prosecutors claim to have no knowledge of the FBI investigation.
At Monday’s hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins, if his prosecution team was “aware of this visit” by two agents to the bin al Shibh team member’s house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britain’s Channel 4 television got a copy of the Mohammed commentary.
“No, we were not,” Martins replied — even before the judge had finished his question.
At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: “I am unaware of any investigation and won’t get into ongoing legal proceedings, anyway.”
Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor “nor the prosecution team had any idea that an investigation was launched.”
“He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation,” said Army Lt. Col. Todd Breasseale, “and in the event that it is determined that releasing [Mohammed’s 36-page commentary] was unlawful.”
Nevertheless, it appears someone requested an investigation into the disclosure. And DOJ’s part of the prosecution team suggests the judge would infringe on Executive Branch privileges if he investigates the FBI investigation.
Separately, a lead case prosecutor, Ed Ryan of the Justice Department warned the judge against asking to question the FBI agents who visited a defense team member.
“Your Honor is suggesting that you want to investigate an ongoing investigation. There are numerous government privileges that would be at stake,” Ryan said at the hearing. “I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation if, in fact, one exists.”
Defense Attorneys also complained that a (perhaps now former) member of the Prosecution team is the Chief of Staff to FBI Deputy Director Mark Giuliano.
And then finally, there’s a member of the trial team, Ms. Baltes, who is also — who also serves as the Chief of Staff to the Deputy Director of the FBI. And I appreciate counsel’s unequivocal statement that the prosecution was not aware of this investigation, did not know — did not know that an investigation was taking place and did not direct FBI agents to go and try to penetrate Mr. Harrington’s team, but somebody did, and somebody at the FBI did. And I don’t think it’s too much of a leap to imagine that when a member of the trial team has a dual role as the Chief of Staff to the Deputy Director of the FBI, that there could be an interface there, and I think it would be appropriate to examine Ms. Baltes as well.
Joanna Baltes happens to have been the lawyer who, in January, refused to admit in public that the CIA had installed a means to censor Gitmo proceedings, unbeknownst to the Judge. Is she, once again, answering to the CIA above and beyond her obligations to a court purportedly delivering independent justice?
So our attempt to hold the perpetrators for 9/11 responsible for their crimes has once again ground to a halt as the Judge investigates whether and why (and at whose behest) the FBI is investigating the release of KSM’s unclassified writings.
Americans might ask, like Russians before them, “wonder what is wrong with their government” that we must delay justice in the 9/11 attack because someone made a shitty tract from KSM publicly available.
Don’t get me wrong. Unlike Boris Pasternak’s novel, KSM’s tract is not literature, not even close. Continue reading
Chuck Grassley rarely gets the credit he deserves for championing whistleblowers. But, while there have been notable exceptions, Grassley has long defended both generalized protections for whistleblowers, as well as whistleblowers themselves.
Yesterday, he gave a long speech on the Whistleblower Protection Act. As part of it, he laid out a number of ways President Obama’s Insider Threat detection program threatened whistleblowers.
He described how the FBI has refused to explain whether Insider Threat Program training adequately distinguishes between whistleblowers and inside threats. Just last week, FBI walked out in the middle of a briefing for Grassley and Pat Leahy!
Meanwhile, the FBI fiercely resists any efforts at Congressional oversight, especially on whistleblower matters. For example, four months ago I sent a letter to the FBI requesting its training materials on the Insider Threat Program. This program was announced by the Obama Administration in October 2011. It was intended to train federal employees to watch out for insider threats among their colleagues. Public news reports indicated that this program might not do enough to distinguish between true insider threats and legitimate whistleblowers. I relayed these concerns in my letter. I also asked for copies of the training materials. I said I wanted to examine whether they adequately distinguished between insider threats and whistleblowers.
In response, an FBI legislative affairs official told my staff that a briefing might be the best way to answer my questions. It was scheduled for last week. Staff for both Chairman Leahy and I attended, and the FBI brought the head of their Insider Threat Program. Yet the FBI didn’t bring the Insider Threat training materials as we had requested. However, the head of the Insider Threat Program told the staff that there was no need to worry about whistleblower communications. He said whistleblowers had to register in order to be protected, and the Insider Threat Program would know to just avoid those people.
Now I have never heard of whistleblowers being required to “register” in order to be protected. The idea of such a requirement should be pretty alarming to all Americans. Sometimes confidentiality is the best protection a whistleblower has. Unfortunately, neither my staff nor Chairman Leahy’s staff was able to learn more, because only about ten minutes into the briefing, the FBI abruptly walked out. FBI officials simply refused to discuss any whistleblower implications in its Insider Threat Program and left the room. These are clearly not the actions of an agency that is genuinely open to whistleblowers or whistleblower protection.
Grassley raises concerns that the monitoring of intelligence community employees will help the IC track whistleblowers who communicate properly to Congress.
Like the FBI, the intelligence community has to confront the same issue of distinguishing a true insider threat from a legitimate whistleblower. This issue could be impacted by both the House- and Senate-passed versions of the intelligence authorization. Both include language about continuous monitoring of security clearance holders, particularly the House version.
Director of National Intelligence James Clapper seems to have talked about such procedures when he appeared before the Senate Armed Services Committee on February 11, 2014. In his testimony, he said:
We are going to proliferate deployment of auditing and monitoring capabilities to enhance our insider threat detection. We’re going to need to change our security clearance process to a system of continuous evaluation. . . . What we need is . . . a system of continuous evaluation, where . . . we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job, to see if there is a potential clearance issue. . . .
Director Clapper’s testimony gives me major pause. It sounds as though this type of monitoring would likely capture the activity of whistleblowers communicating with Congress.
I’m going to level with you all. Today is my birthday.
And in honor of my birthday, apparently, two of my nemeses will shift their careers. At 3PM, Keith Alexander retires as Director of the NSA.
And in an entirely unexpected announcement, Congressman Mike Rogers announced he will not run for reelection this year.
Happy Birthday to me — and by extension, to all of you!
Now, Mike Rogers’ excuse for retiring — that he’s been offered a national radio show on Cumulus Radio — doesn’t make sense. Less than a year ago, when he decided not to run for Carl Levin’s seat, he said he felt he could still do a lot of good in the House. A key part of that, though, was that unlike other House Committees, the Republicans don’t term limit the Intelligence Committee Chair position (the Democrats don’t term limit anything). So a key reason Rogers gave was that he’d remain HPSCI Chair.
So I can’t help but wonder whether his departure has something to do with his Chairmanship of the Intelligence Community (the original announcement last night from The Hill was that he was resigning the Chairmanship, with the even more horrible Mike Pompeo to take his place, with no mention of him retiring from Congress).
And I honestly wonder whether Rogers got caught revealing information so sensitive that he was told, by the Intelligence Community, to take a hike. Remember that after Richard Shelby leaked news that the NSA had overheard warnings of the 9/11 attack before it happened, he not only stepped down as Ranking Member (he had been Chair) of the Senate Intelligence Committee, he left the Committee entirely. No one ever said that was the reason, but I’ve long assumed that’s what happens when you step over the line of acceptable leaking as a Gang of Four member — you quietly walk away at the end of the term.
Pete Hoekstra leaked very damaging information in his last term as House Intel Chair — that we had a real-time intercept on Anwar al-Awlaki — though he had already announced he was leaving the House to run for Governor.
Mind you, most of the high volume of classified information Mike Rogers leaks, he does so with the blessing of the Intelligence Committee, as Gang of Four members are increasingly expected to serve as cut-outs for the Intelligence Community. Plus, much of what he “leaks” is in fact disinformation. Still, there are a number of stories that reveal NSA intercepts, many placed with conservative journalists, that could very easily have come from him. Some of them have been deemed more immediately damaging than all of Snowden’s leaks. Rogers would be legally protected under the Speech and Debate Clause, but there’d be good reason to remove him from his sensitive position, if he had been discovered to be the source for those stories.
If that happened, I can imagine that facing the prospect of staying in the House without his powerful Intelligence gavel might persuade Rogers he’d rather froth up wingnuts for war on AM radio then while away with much less power in the House. Also, if he compromised intelligence, it’d explain why he’s not moving on to a sinecure with an Intelligence Contractor, as had been floated at different times in the last year or so.
Meanwhile, Rogers’ departure opens up a pretty decent opportunity for Democrats in a district they were otherwise (inexplicably) not going to seriously contest. The Clerk who married the first same sex couple last weekend, Barb Byrum, is among the potential Democratic candidates.
Anyway, at 3PM I shall raise a toast to the departure of Keith Alexander. And hope for better things in MI’s 8th CD.
Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.
I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”
It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy. The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:
Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;
I believe that the CIA Director delegates this duty to the CIA General Counsel.
Note how low the bar is for the referral—possible violations of federal law. Think about what that low standard means. It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law. As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.” It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]
But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,
The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).
In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”
Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?
But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.
In the background of the fight between CIA and the Senate Intelligence Committee lurked the nomination of Caroline Krass.
Mark Udall had said that he would hold her nomination to get some answers on the Torture Report.
But she just got confirmed with just a few more no votes –4 — than the 2 she got from the Committee. Dianne Feinstein, Ron Wyden, Martin Heinrich, Mark Udall all voted yes.
This was predictable. As I pointed out the other day, the alternative to quickly confirming Krass was leaving Robert Eatinger — the guy who launched a witch hunt into Committee staffers — Acting Counsel at CIA. Even a mediocre candidate would be preferable to that, for Committee Democrats, and by all reports and appearances Krass is a very sharp and candid lawyer.
That said, in addition to seeking leverage over the Torture Report dispute, Committee members had expressed concern that Krass explicitly endorsed withholding privileged documents from the oversight Committee. So by rushing through Krass’ nomination, the Senate waived any opportunity to obtain some commitment for greater sharing with the Senate.
And thus it happens that, in response to an intolerable situation concocted by Article II, Article I pisses away even more of its authority.
Update: Here’s Udall’s statement on Krass.
Udall, a member of the U.S. Senate Select Committee on Intelligence, released his procedural hold today on the nomination of Caroline Krass to be the CIA’s general counsel, citing the conflict of interest of the acting-general counsel, as well as a firm and clear commitment by the president to declassify the committee’s landmark report on the CIA’s detention and interrogation program.
“We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate Intelligence Committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said. “The president has stated an unequivocal commitment to supporting the declassification of the Senate Intelligence Committee’s report. Coloradans expect me to hold him to his word.”
The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!
Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.
April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)
After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.
In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.
However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.
After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.
September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)
October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.
December 24, 2002: CTC completes memo advocating for destruction of torture tapes.
Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.
She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.
June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.
April 2004: Eatinger takes over as top CTC lawyer.
Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)
Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.
May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.
June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.
August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.
August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.
September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.
September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.
February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.
Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.
March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.
March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.
April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.
May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.
May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.
November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.
November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.
January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.
April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.
May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.
Update: h/t to DocEx blog for some additions to this timeline.
Dianne Feinstein just gave a barn burner of a speech explaining the CIA/SSCI fight over the Torture Report. There are a lot of details I’ll return to.
But one of the most important issues, in my mind, is the detail that the Acting General Counsel of the CIA, Robert Eatinger, referred the Senate Intelligence Committee investigators to DOJ for investigation. (h/t to DocexBlog for identifying Eatinger) Feinstein correctly interpreted this as an attempt to intimidate her staffers as they complete the investigation.
And, as Feinstein made clear, Eatinger is a key focus of the report. Feinstein revealed that Eatinger (whom she did not name) was named, by name, (if I heard Feinstein’s claim correctly) 1,600 times in the Torture Report.
At least some of those mentions surely describe CIA’s decision to destroy the torture tapes, an act Eatinger sanctioned.
Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes’ destruction but rather concluded there was “no legal impediment” to disposing of them, according to sources briefed on their advice.
Hermes and Eatinger, who only recently were interviewed by Durham, continue to work at the agency and have retained counsel, the sources said.
Feinstein described Eatinger’s key role as the Counterterrorism Center’s chief lawyer (presumably after Jonathan Fredman left). Some things CTC lawyers did were:
Lawyers probably associated with CTC also lied about the treatment of Hassan Ghul in 2004.
Eatinger also contributed to a CIA cover-up attempt in a key State Secrets case.
There’s a lot that’s amazing about this story. But I find it particularly telling that a lawyer trying to protect his own ass — trying to hide details of the 1,600 mentions of his name in the Torture Report — has targeted Senate Intelligence Committee staffers.
Update: Given that Eatinger is apparently the person who referred the Senate staffers, it is significant that Feinstein started her speech by raising the torture tape destruction.
The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.
A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence.
After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.
The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed.