The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.
That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”
DIOG does include online news in its definition of media (PDF 157).
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
But then it goes on to exclude bloggers from those included in the term “news media.”
The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).
Then it goes onto lay out what I will call the “WikiLeaks exception.”
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.
The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.
The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act — which should have prevented DOJ from treating James Rosen as a suspect. They say,
The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.
Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media. [my emphasis]
The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce;
I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.
Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.
Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).
Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.
In what can only be described as a significant ruling, Judge Jeffrey White in the Northern California District (CAND) has rejected the federal government’s, via the Obama and Holder Department of Justice, assertion of state secrets privilege in the case of Jewel v. National Security Agency and the related consolidated case of Shubert v. Obama.
The full decision of the court is here, and in the critical active language from the court’s own summary states:
Having thoroughly considered the parties’ papers, Defendants’ public and classified declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs’ constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for summary judgment on the remaining, non-statutory claims.
The Court shall require that the parties submit further briefing on the course of this litigation going forward.
Now, before too much celebration is made, there are some sobering aspects of this decision as well. As can be told from the quote above, several counts in both complaints have been dismissed based on sovereign immunity, and the court has questions about the continued validity of the remaining counts and has requested further briefing in that regard.
With the ultimate status of the litigation left for another day, the big news today is the negation of the dreaded state secrets assertion. To say this is a rare occurrence is to be too kind. In fact, the main instance where the privilege was overcome was the al-Haramain litigation, also in CAND, where Judge Vaughn Walker found non-classified evidence sufficient to proceed in the face of the state secrets assertion, and even that case was later reversed and dismissed by the 9th Circuit.
The court in Jewel mapped out the consideration process for the privilege challenge:
The analysis of whether the state secrets privilege applies involves three distinct steps. First, the Court must ascertain whether the procedural requirements for invoking the privilege have been satisfied. Second, the Court must make an independent determination whether the information is privileged. In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. 19 at 11. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.” El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).
Noting that the assertion of state secrets must not cause “a complete surrender of judicial control over access to the courts”, Judge White wrote:
Here, having reviewed the materials submitted for review and having considered the claims alleged and the record as a whole, the Court finds that Defendants have timely invoked the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,
because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.
507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal. 2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret. See Totten, 92 U.S. at 107.
White went on to note that there were significant items of evidence in the Jewel case tending to confirm or negate the factual allegations in Plaintiffs’ complaints that would be subject to state secrets exclusion. However, White held that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C. 26 § 1806(f) preempted application of the state secrets privilege in the litigation at bar.
Citing one of the interlocutory appellate decisions in al-Haramain and the underlying logic of then trial judge Vaughn Walker), Judge White said:
In its opinion on remand in the Al-Haramain matter, this district court found that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes ….” In re National Security Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records Litig.”), 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008). The undersigned agrees and finds that the in camera review procedure in FISA applies and preempts the determination of evidentiary preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets privilege in cases in which electronic surveillance yields potentially sensitive evidence by providing secure procedures under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.
Section 1806 of the FISA enabling statutes in Title 50 of the United States Code provides, inter alia;
… whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State . . . to discovery or obtain applications or orders or other materials relating to electronic surveillance . . . the United States district court … shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
This finding by Judge White reaffirmed at least some control by federal trial courts of sweeping assertions of state secrets privilege by the Executive Branch. That is, better than nothing, for sure. But it is rather small comfort in light of the finding of qualified immunity extended to the government on the Jewel and Shubert plaintiffs’ statutory claims under FISA.
In discussing the intersection of the FISA claims with related claims by plaintiffs under the Stored Communication Act and Wiretap Act, the court did leave several more general counts of the complaints active. However, there is no way to look at the entirety of Jeff White’s opinion and come away believing the plaintiffs have any clear path to victory in the long run. The Jewel and Shubert cases live on to fight another day, for now, but the handwriting is on the wall for either the 9th Circuit or Supreme Court to deal the death blow down the road.
Congratulations to the AP, which has caught up to the reporting I did a month ago on the way SOCOM purged their own systems of Osama bin Laden photos (and, apparently, records) and moved them to the CIA.
But it appears that this shell game involved more than just moving all these records to CIA. It appears CIA had to retroactively classify at least the photographs.
As you recall, Judicial Watch (as well as a bunch of other entities) had FOIAed any pictures of the raid. It its motion for summary judgment, JW made several complaints about the government’s FOIA response:
It is the last of these that is most interesting, given the apparent fact that DOD transfered all its photos to CIA (plus my suspicion that a lot of these are trophy photos, not official operational photos).
First, Defendants fail to identify who classified the records. Director Bennett testifies as to who generally has the authority to classify information as TOP SCERET and who generally has the authority to delegate such authority. Bennett Decl. at ¶¶ 14-15. In addition, Director Bennett states that the “Director of the CIA has delegated original TOP SECRET classification authority to me. As an original classification authority, I am authorized to conduct classification reviews and to make original classification decisions.” Id. at ¶ 18. Yet, Director Bennett does not testify that he personally classified the records. Nor does he state that any other authorized official actually classified the records. If an individual without the proper authority classified the records, Defendants have not complied with the procedural requirements of EO 13526.
Second, Director Bennett does not specifically testify as to when the 52 records were classified. Director Bennett only states that as of September 26, 2011, the 52 records are currently and properly classified. Continue reading
The 2009 Draft NSA IG Report released by the Guardian last week — and related reporting from Barton Gellman — seem to clarify and confirm what I’ve long maintained (12/19/05; 7/29/07; 7/30/07): that one part of the illegal wiretap program that Jack Goldsmith and Jim Comey found “illegal” in 2004 was data-mining of Americans.
Eight days later on 19 March 2004, the President rescinded the authority to collect bulk Internet metadata and gave NSA one week to stop collection and block access to previously collected bulk Internet metadata. NSA did so on 26 March 2004. To close the resulting collection gap, DoJ and NSA immediately began efforts to recreate this authority in what became the PR/TT order.
Mind you, this bulk collection resumed after Colleen Kollar-Kotelly signed an order permitting NSA to collect the same data under a Pen Register/Trap & Trace order on July 14, 2004.
The FISC signed the first PR/TT order on 14 July 2004. ALthough NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP, except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data.
Indeed, we know the program was expanded again in 2007, to get 2 degrees of separation deep into US person Internet data. The Obama Administration claims it ended this in 2011, though there are also indications it simply got moved under a new shell.
Mystery solved, Scoob!
Not so fast.
It appears the bulk Internet metadata collection and mining is just one of two practices that Goldsmith and Comey forced Bush to at least temporarily halt in 2004. But the second one is not mentioned at all in the NSA IG Report.
I first noted that Bush made two modifications to the program in this post, where I noted that 6 pages (11-17) of Jack Goldsmith’s May 6, 2004 OLC opinion on the program described plural modifications made in March and one other month in 2004 (I correctly surmised that they had actually shifted parts of the program under parts of the PATRIOT Act, and that they had narrowed the scope somewhat, though over-optimistically didn’t realize that still included warrantless collection of known domestic content).
But there’s actually a far better authority than Goldsmith’s heavily redacted opinion that confirms Bush made two modifications to the program in this period.
When his office disclosed to Patrick Leahy in 2007 what documents it had regarding authorizations for the illegal wiretap program, it listed two modifications to the program: the one on March 19 described in detail in the NSA IG Report, plus one on April 2.
[Cheney Counsel Shannen] Coffin’s letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year.
But there’s no hint of a second modification in the NSA IG Report.
That could mean several things. It could mean the April 2 modification didn’t involve the NSA at all (and so might appear in a one of the other Agency IG Reports at the time — say, DNI — or might have been completed by an Agency, like some other part of DOD, that didn’t complete an IG Report). It could mean that part of the program was eliminated entirely on April 2, 2004. Or it could mean that in an effort to downplay illegality of the program, the IG simply didn’t want to talk about the worst prior practice eliminated in the wake of the hospital confrontation.
Goldsmith’s opinion does seem to indicate, however, that the modification pertained to an issue similar to the bulk metadata collection. He introduces that section, describing both modifications, by saying “it is necessary to understand some background concerning how the NSA accomplishes the collection activity authorized under” the program.
That may still pertain to the kind of data mining they were doing with the Internet metadata. After all, the fix of moving Internet metadata collection under the PR/TT order only eliminated the legal problem that the telecoms were basically permitting the government to steal Microsoft and Yahoo Internet content from their equipment. There still may have been a legal problem with the kind of data mining they were doing (perhaps arising out of Congress’ efforts in that year’s NDAA to prohibit funding for Total Information Awareness).
Whatever it is, one thing is clear. Even with the release of the unredacted Draft NSA IG Report, we still aren’t seeing all the details on what made the program so legally problematic.
Maybe it’s something the Senate Judiciary Committee might ask Jim Comey during his FBI Director confirmation hearing?
Judge Colleen Kollar-Kotelly is pissed.
After spending 2002 to 2006 as Chief Judge of the FISA Court struggling to keep parts of the American legal system walled off from a rogue surveillance program, she read the classified account the NSA’s Inspector General wrote of her efforts. And while that report does say Kollar-Kotelly was the only one who managed to sneak a peek at a Presidential Authorization authorizing the illegal program, she doesn’t believe it reflects the several efforts she made to reel in the program.
“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post.
Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.
“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”
The WaPo story reporting on her objections makes no mention of the role one FISC law clerk — who got briefed into the program before any of the other FISC judges — played in this process, something I’m pretty curious about.
It does, however, recall two incidents where Kollar-Kotelly took measures to crack down on the illegal program, which Carol Leonnig reported back in 2006.
Both [Kollar-Kotelly and her predecessor Royce Lamberth] expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
In 2004, [DOJ Office of Intelligence Policy and Review Counsel James] Baker warned Kollar-Kotelly he had a problem with [a "federal screening system that the judges had insisted upon to shield the court from tainted information"]. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.
Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete — or face possible perjury charges.
In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said. Some administration officials explained to Kollar-Kotelly that a low-level Defense Department employee unfamiliar with court disclosure procedures had made a mistake.
Though the NSA IG Report mentions violations that occurred before 2003, it makes no mention of these violations.
What good is an IG Report that gives no idea of how often and persistent violations are?
That said, today’s WaPo story provides this as the solution to our distorted view of the FISA Court’s role in rubber-stamping this massive dragnet.
A former senior Justice Department official, who spoke on the condition of anonymity because of the subject’s sensitivity, said he believes the government should consider releasing declassified summaries of relevant opinions.
“I think it would help” quell the “furor” raised by the recent disclosures, he said. “In this current environment, you may have to lean forward a little more in declassifying stuff than you otherwise would. You might be able to prepare reasonable summaries that would be helpful to the American people.”
Back in 2006, Leonnig noted that the judges didn’t believe they had the authority to intervene to stop the dragnet. So what good does a ruling — even two as broad and stunning as the ones that used Pen Registers and Business Records to collect the contact records of all Americans — do to depict the role the Court is in?
The Administration keeps pointing to this narrowly authorized court as real court review. But that’s not what it is. And until we have a better sense of how that manifested in the past (and continues to — I’ll bet you a quarter that they’ve moved the Internet data mining to some area outside of court purview), we’re not going to understand how to provide real oversight to this dragnet.
We’d be far better off having the FISC provide its own history of these surveillance programs.
I’ve long argued that our security clearance employment system is “an arbitrary system of control that does more to foster cowed national security employees than to foster actual national security.”
So I’m none too happy to know more than 50,000 Americans have been added to this arbitrary system in the last year, making up something like 1.6% of all Americans.
The number of people who are cleared for access to classified information continued to rise in 2012 to more than 4.9 million, according to a new annual reportfrom the Office of the Director of National Intelligence. This is only the third official tally of government-wide security clearance activity ever prepared, and it is the largest reported to date.
The total number of cleared personnel as of October 1, 2012 was 4,917,751. Although the number of contractors who held a clearance declined in 2012, the number of eligible government employees grew at a faster rate, yielding a net increase of 54,199 clearances, or 1.1 percent, from the year before.
I suspect adding 50,000 people to the rolls of clearance holders — whose lives are open to surveillance and from whom minor lies can be an excuse for termination — will simply increase the numbers of elite national security types who avoid pissing off the powerful.
Meanwhile, Josh Gerstein has an excellent report on what’s at stake in the Conyers v. Department of Defense lawsuit, in which two relatively low level DOD employees are fighting to retain their Merit Systems Protect Board protections in spite of the government deeming their jobs “sensitive.”
The Justice Department and Defense Department are arguing that federal employees like commissary managers and accountants, who don’t have access to classified information, can be demoted or effectively fired without recourse to the usual avenues of appeal if their jobs are designated as “sensitive.” The ripple effect of that — critics say it would effectively strip huge numbers of federal workers of civil service protections by treating them like those who have access to the nation’s most vital secrets — could hollow out legal protections that have allowed whistleblowers to speak out with less fear of being fired.
As I’ve noted, DOD argues that even those who sell Gatorade on military bases should receive no protections in case they’re deemed a security threat. Which means people like Rhonda Conyers and Devon Northover, the plaintiffs in this case, can be fired for holding unpopular views, because that might make them untrustworthy to sell service members Gatorade.
This is a creeping system by which more and more lucrative (and semi-lucrative, in the case of “sensitive”) jobs are subjected to arbitrary political whims.
And it’s growing.
Back in the days, just weeks ago, when Tommy Vietor was the National Security Council Spokesperson, I tended to attribute the dickish comments made by Senior Administration Officials in articles in which he was also quoted to him.
When he left, we had this exchange on Twitter.
I will say this for him. He’s a good sport.
I don’t envy his position trying to claim the Obama Administration lives up to its self-billing as the Most Transparent Administration Evah™, based on releasing White House visitor logs.
All that said, I would have added two points to the exchange above.
First, the Administration is not conducting counterterrorism exclusively under the AUMF.
Obama’s own Administration went to the mat in 2009 to prevent a short phrase — maybe 6 words — from being released under FOIA making it clear that torture was originally conducted under the September 17, 2001 Gloves Come Off Memorandum of Notification on President Bush’s authorization alone. And they managed to win that battle by arguing the MON — which authorizes targeting killing, among other things — is still active. So, no, Tommy, the Administration is not operating — not exclusively anyway — under the AUMF.
Also, what the fuck kind of democracy are we if we require lawsuits for basic democracy to take place? It’s all well and good of Vietor to say we (only Trevor Timm of the three of us really has the funds to sue sue sue, and even then, only in selective situations) should just sue our way to democracy. But the law says we shouldn’t have to sue.
Anyway, it was a particularly fun appearance, and great to be on with Kevin Gosztola and Trevor Timm as well.
At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.
As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.
Nevertheless, it asked for closely related information:
The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.
At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.
So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.
Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.
With all that in mind, I thought I’d look at what Delery said to the DC Circuit.
MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.
This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.
Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]
Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.
Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.
By a 5-4 party line vote, SCOTUS denied standing in Amnesty v. Clapper today.
The majority opinion, written by Sam Alito, emphasizes separation of power.
The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.
In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”
and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs,
It uses a high standard for the imminence of harm, including what I consider a highly ironic passage, considering the Administration’s own standards for imminence.
“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.
It even says it can’t use in camera review in this case, because doing so would establish a precedent terrorists could use to find out whether they’re being wiretapped.
It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.
Ultimately, though, it said the plaintiff’s fears were too speculative to amount to standing.
It does so by ignoring — and indeed, misrepresenting — the details presented about what is new in this program. Here’s how Stephen Breyer, in his dissent, describes them.
The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the require ment that the Government describe to the court each specific target and identify each facility at which its sur veillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e).
By contrast, Alito claims the new program only allows the government to target individuals (h/t Julian Sanchez who first pointed this out).
In an interview with WSJ last March, White House Counsel Kathryn Ruemmler said that publicly explaining the drone program would be “self-defeating.”
White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.
“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”
Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.
At the time, I thought she was treating the NYT and ACLU as “the public.” After all, in a debate over releasing the targeted killing memos in the situation room in November 2011, she had warned that releasing the memo might weaken the government’s position in litigation, presumably the FOIA battle with the two entities.
The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.
The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. [my emphasis]
But having now updated my timeline of the over 14 requests members of Congress have made for the targeted killing memos, she seems to lump Congress with the ACLU and NYT.
More troubling, though: it appears the White House stalled its response to Congress for almost nine months simply to gain an advantage in the ACLU FOIA lawsuits.
Here are the relevant dates: Continue reading