Jack Goldsmith observes that President Obama seems to be skirting War Power Resolution rules by sending Congress notice of incremental battles against ISIS.
Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.” This is the third Iraq WPR letter to Congress in a month, and the sixth this summer. In June the President sent three WPR letters – the first (June 16) on the initial deployment of 275 soldiers to protect the embassy; then another (June 26) on further troops to protect the embassy and increased intelligence-gathering against the Islamic State; and a third (June 30) for ore troops to protect the embassy. Six weeks later, on August 8, the President sent a WPR letter concerning the use of force in Iraq to stop the “current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.” On August 17, he sent a letter concerning the use of force in Iraq “to support operations by Iraqi forces to recapture the Mosul Dam.” And then yesterday’s letter on Amirli. (John recently summarized how these WPR letters are typically generated.)
Such frequent letters to Congress about discrete missions within a single country are not typical. Typically the President sends one WPR letter to cover the use of force within a country, and then updates that use of force as part of a biannual consolidated report.
Why, then, has the President sent Congress six narrowly tailored WPR letters related to Iraq since mid-June? I can think of two possible explanations.
First, the President wants to keep Congress super-informed about what he is doing in Iraq. I doubt this is the reason, or at least the main reason, since the information in the letters was publicly known (or about to be). Relatedly, the administration might want to emphasize to Congress that each use of force is limited in scope and time, though in the aggregate such discrete reporting might have the opposite effect.
Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq. (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)
Definitely click through to see the addendum Goldsmith put together, showing Obama’s accelerating rate of WPR note-sending.
Not only does he seem to be dodging the intent of WPR (in more legalistic, though no less obstinate fashion than Obama did with Libya). But by attaching letters to each mountain or dam we have to defend on humanitarian grounds, you pretty much ensure a piecemeal approach.
That may still be better than declaring war against ISIS, with the inevitable mission creep that would bring. But I’m not sure that war by epistolary novel is any less likely to result in mission creep.
Back when we last saw Judge Colleen McMahon in the ACLU/NYT drone killing FOIA, she reluctantly shut down those FOIA bids. Since then, of course, the government kept blathering about its drone programs — including releasing a white paper so John Brennan could become CIA Director — leading the 2nd Circuit to order the government to release the drone killing memo and have McMahon review the others for release.
The government tried to welch on that part of the order though, twice asking McMahon to let them file a motion for summary judgment regarding what it should and should not have to disclose. The ACLU and NYT were not amused with the government’s attempts to rewrite the 2nd Circuit’s order.
You know who was even less amused? Judge McMahon.
This court will not be entertaining arguments about the applicability of FOIA exemptions to the legal memoranda that the Government must produce before complying with the mandate. Instead, it will follow the mandate to the letter: I will analyze the legal memoranda that were not previously produced (either to this court or to the Second Circuit) to see if the Government has waived its right to invoke any FOIA exemptions. I will do that before I do anything else, and I will do it on the schedule I set.
There is no need to conduct any “careful review,” let alone any “inter-agency review” before producing the documents in accordance with the mandate. The Circuit’s order that they be produced for in camera inspection is clear and admits of no argument or exception. Frankly, the Government’s bald assertion, in its letter of July 7, 2014, that it gets to decide “whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit” would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall. [emphasis original]
Remember, McMahon made it clear that before the government kills someone for treason, they’re supposed to make their case before an Article III Judge.
She seems to be getting weary of the government’s usurpation of her job.
In very much related news, the 2nd Circuit just told the government it actually has to provide a functional Vaughn Index. It, too, appears to be weary, this time of the government’s repeated efforts to expand the universe of titles of documents it doesn’t have to disclose.
It is far too late in the day to fail to identify by specific numbers the “other” listings. The Government’s claim that “space constraints” in the rehearing petition preclude the requisite specificity, see Petition 15, is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.
Imagine that. The government might actually have to release more details of how it uses drones to kill US citizens.
As you read the Awlaki memo, it’s worth remembering why it was written, after David Barron had already written a memo authorizing Anwar al-Awlaki’s killing 5 months earlier. In April 2010, as newspapers reported that Awlaki had been added to the CIA Kill List (having been added to the JSOC one either in December 2009, before they tried to kill him on Christmas Eve, or in January 2010, when Dana Priest reported it), international law scholar Kevin Jon Heller wrote a blog post arguing that it would be murder for CIA to kill Awlaki.
The Obama administration has been savagely criticized for authorizing the CIA to use lethal forceagainst Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen. Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.” To date, however, critics have ignored what I think is perhaps the most important point:An American who kills an American outside of the United States is guilty of murder. Not political murder. Not figurative murder. Legal murder.
The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki. If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer. The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.
In response to this post, David Barron felt the need to reconsider the question.
The main point was to determine whether the CIA — not the government generally — could kill Awlaki.
And the memo seems to betray uncertainty about whether they’ve really proved their case.
Consider the length. Barron takes 10.5 pages to consider whether DOD could kill Awlaki, and somewhat unsurprisingly finds that soldiers whose job it is to kill the country’s enemies can kill someone who has been deemed an enemy to his country.
Barron spends just 5 pages considering the far more controversial question whether CIA can kill Awlaki. As was pretty clear Barron would do from the White Paper, he does so by collapsing the difference between soldiers (whose job is to kill our enemies) and CIA (who are prohibited from breaking US law and whose job is not, primarily, to kill our enemies). That is, the argument in favor of soldiers killing stands in for a considered argument for spies killing.
It seems to accomplish this by classifying CIA’s actions as military — though the classification is redacted. See this passage from page 18:
And this passage from page 32:
Given debates that took place afterwards, I think the redacted language may either describe CIA’s actions as Traditional Military Activities or paramilitary activities. It appears by labeling the CIA’s job as such, Barron disappeared the other rules that govern CIA action. But his language in this footnote, doesn’t reflect great confidence his argument is very strong.
We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence of killing an enemy in a time of war”); Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war.”)
Barron’s confidence in footnote 44 — especially where he argues that the US doesn’t think that unprivileged combatants (which include both CIA and al Qaeda members operating not in uniform) engaging in killing violates the law — appears even more shaky. If that’s true, then someone should go free Omar Khadr, because we argued that his self-defense attempted killing of Americans was illegal solely because he was unprivileged.
That is, it doesn’t appear even Barron believes his own argument.
One other thing that appears to be redacted is the authority for CIA’s actions, in the redacted language following “the CIA would carry out in accord with” …
That language probably refer to the Presidential Finding required before CIA engages in covert operations. That is, critical to this argument appears to be the formula that if the President deems the CIA a military force (and gives them drones) then they get treated — at least according to US law — just like soldiers, even when they’re killing Americans.
That involves an extra step to the formula “if the President authorizes it,” requiring also that he call CIA spies soldiers. But it still amounts to the same argument.
Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.
Panetta tells a funny story about how (but not when) the torture program became a special access program.
Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.
Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]
See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.
Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).
I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.
But it also should dictate the White House take the lead on declassification of the torture program.
Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.
In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”
“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.
Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.
Which is why the President should take responsibility for releasing the report.
As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.
The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)
The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.
On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.
MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.
Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.
Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.
As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.
Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.
The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:
Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.
The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Continue reading
In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.
As Josh Gerstein and others have reported, the plea will be entered this afternoon:
Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.
Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.
Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.
As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:
“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.
The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.
The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.
As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.
“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.
But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!
Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.
That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.
Back when John Yoo was finding ways to authorize President Bush’s illegal wiretap program — especially spying on Americans who were not agents of a foreign power — he changed the meaning of certain limits in EO 12333 without rewriting EO 12333. The President didn’t have to change EO 12333 to reflect actual practice, Yoo determined (relying on an Iran-Contra precedent), because ignoring EO 12333 amounted to modifying it.
An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
I call this pixie-dusting, where the Executive makes his own orders and directives disappear in secret.
The use of pixie-dust — so recently used to justify spying on people while pretending not to spy on them — ought to give you pause when you read this passage from President Obama’s Presidential Policy Directive limiting US spying overseas (or, frankly, everything he said today, which all consists of the Executive exercising its prerogative to change and oversee Executive actions, but in no way includes any teeth to sustain such changes).
Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.
Effectively Obama is laying out his prerogative to pixie dust this PPD.
And while the President admittedly would always have such prerogative, he didn’t include such a paragraph in his cyberwar PPD (which, of course, wasn’t meant to be public).
This PPD was designed to be ignored.
And I suspect our friends and adversaries know that.
At the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.
As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.
Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:
I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.
Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.
Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.
Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.
Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.
So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:
Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.
Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.
Or, as Glenn Greenwald noted:
The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.
There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.
Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:
If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.
It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.
In the parlance of the once and forever MTV set, civil libertarians just had one of the “Best Weeks Ever”. Here is the ACLU’s Catherine Crump weighing in on the surprising results of President Obama’s Review Board:
Friday, the president’s expressed willingness to consider ending the NSA’s collection of phone records, saying, “The question we’re going to have to ask is, can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that in fact the NSA is doing what it’s supposed to be doing?”
With this comment and the panel’s report coming on the heels of Monday’s remarkable federal court ruling that the bulk collection of telephone records is likely unconstitutional, this has been the best week in a long time for Americans’ privacy rights.
That “federal court ruling” is, of course, that of Judge Richard Leon handed down a mere five days ago on Monday. Catherine is right, it has been a hell of a good week.
But lest we grow too enamored of our still vaporous success, keep in mind Judge Leon’s decision, as right on the merits as it may be, and is, is still a rather adventurous and activist decision for a District level judge, and will almost certainly be pared back to some extent on appeal, even if some substantive parts of it are upheld. We shall see.
But the other cold water thrown came from Obama himself when he gave a slippery and disingenuous press conference Friday. Here is the New York Times this morning capturing spot on the worthless lip service Barack Obama gave surveillance reform yesterday:
By the time President Obama gave his news conference on Friday, there was really only one course to take on surveillance policy from an ethical, moral, constitutional and even political point of view. And that was to embrace the recommendations of his handpicked panel on government spying — and bills pending in Congress — to end the obvious excesses. He could have started by suspending the constitutionally questionable (and evidently pointless) collection of data on every phone call and email that Americans make.
He did not do any of that.
He kept returning to the idea that he might be willing to do more, but only to reassure the public “in light of the disclosures that have taken place.”
In other words, he never intended to make the changes that his panel, many lawmakers and others, including this page, have advocated to correct the flaws in the government’s surveillance policy had they not been revealed by Edward Snowden’s leaks.
And that is why any actions that Mr. Obama may announce next month would certainly not be adequate. Congress has to rewrite the relevant passage in the Patriot Act that George W. Bush and then Mr. Obama claimed — in secret — as the justification for the data vacuuming.
Precisely. The NYT comes out and calls the dog a dog. If you read between the lines of this Ken Dilanian report at the LA Times, you get the same preview of the nothingburger President Obama is cooking up over the holidays. As Ken more directly said in his tweet, “Obama poised to reject panel proposals on 702 and national security letters.” Yes, indeed, count on it.
Which brings us to that which begets the title of this post: I Con The Record has made a Saturday before Christmas news dump. And a rather significant one to boot. Apparently because they were too cowardly to even do it in a Friday news dump. Which is par for the course of the Obama Administration, James Clapper and the American Intel Shop. Their raison de’etre appears to be keep America uninformed, terrorized and supplicant to their power grabs. Only a big time operator like Big Bad Terror Voodoo Daddy Clapper can keep us chilluns safe!
So, the dump today is HERE in all its glory. From the PR portion of the “I Con” Tumblr post, they start off with Bush/Cheney Administration starting the “bulk” dragnet on October 4, 2001. Bet that is when it first was formalized, but the actual genesis was oh, maybe, September 12 or so. Remember, there were security daddies agitating for this long before September 11th.
Then the handcrafted Intel spin goes on to say this:
Over time, the presidentially-authorized activities transitioned to the authority of the Foreign Intelligence Surveillance Act (“FISA”). The collection of communications content pursuant to presidential authorization ended in January 2007 when the U.S. Government transitioned the TSP to the authority of the FISA and under the orders of the Foreign Intelligence Surveillance Court (“FISC”). In August 2007, Congress enacted the Protect America Act (“PAA”) as a temporary measure. The PAA, which expired in February 2008, was replaced by the FISA Amendments Act of 2008, which was enacted in July 2008 and remains in effect. Today, content collection is conducted pursuant to section 702 of FISA. The metadata activities also were transitioned to orders of the FISC. The bulk collection of telephony metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to section 501 of FISA. The bulk collection of Internet metadata was transitioned to the authority of the FISA in July 2004 and was collected pursuant to section 402 of FISA. In December 2011, the U.S. Government decided to not seek reauthorization of the bulk collection of Internet metadata.
After President Bush acknowledged the TSP in December 2005, two still-pending suits were filed in the Northern District of California against the United States and U.S. Government officials challenging alleged NSA activities authorized by President Bush after 9/11. In response the U.S. Government, through classified and unclassified declarations by the DNI and NSA, asserted the state secrets privilege and the DNI’s authority under the National Security Act to protect intelligence sources and methods. Following the unauthorized and unlawful release of classified information about the Section 215 and Section 702 programs in June 2013, the Court directed the U.S. Government to explain the impact of declassification decisions since June 2013 on the national security issues in the case, as reflected in the U.S. Government’s state secrets privilege assertion. The Court also ordered the U.S. Government to review for declassification all prior classified state secrets privilege and sources and methods declarations in the litigation, and to file redacted, unclassified versions of those documents with the Court.
This is merely an antiseptic version of the timeline of lies that has been relentlessly exposed by Marcy Wheeler right here on this blog, among other places. What is not included in the antiseptic, sandpapered spin is that the program was untethered from law completely and then “transitioned” to FISC after being exposed as such.
Oh, and lest anybody think this sudden disclosure today is out of the goodness of Clapper and Obama’s hearts, it is not. As Trevor Timm of EFF notes, most all of the “I Con” releases have been made only after being forced to by relevant FOIA and other court victories and that this one in particular is mostly germinated by EFF’s court order (and Vaughn index) obtained.
So, with that, behold the “I Con” release of ten different declarations previously filed and extant under seal in the Jewel and Shubert cases. Much of the language in all is similar template affidavit language, which you expect from such filings if you have ever dealt with them. As for individual dissection, I will leave that for later and for discussion by all in comments.
The one common theme that I can discern from a scan of a couple of note is that there is no reason in the world minimally redacted versions such as these could not have been made public from the outset. No reason save for the conclusion that to do so would have been embarrassing to the Article II Executive Branch and would have lent credence to American citizens properly trying to exercise and protect their rights in the face of a lawless and constitutionally infirm assault by their own government. The declarations by Mike McConnell, James Clapper, Keith Alexander, Dennis Blair, Frances Fleisch and Deborah Bonanni display a level of too cute by a half duplicity that ought be grounds for sanctions.
The record has been conned. Our federal courts have been conned. All as the Snowden disclosures have proven. And the American people have been defrauded by pompous terror mongers who value their own and institutional power over truth and honesty to those they serve. Clapper, Alexander and Obama have the temerity to call Ed Snowden a traitor? Please, look in the mirror boys.
Lastly, and again as Trevor Timm pointed out above, these are just the declarations for cases the EFF and others are still pursuing. What of the false secret declarations made in al-Haramain v. Obama, which the government long ago admitted were bogus? Why won’t the cons behind “I Con” release those declarations? What about the frauds perpetrated in Mohamed v. Jeppesen that have fraudulently ingrained states secrets cons into the government arsenal?
If the government wants to come clean, here is the opportunity. Frauds have been perpetrated on our courts, in our name. We should hear about that. Unless, of course, Obama and the “I Cons” are really nothing more than simple good old fashioned cons.
[By the way, Christmas is a giving season. If you have extra cheer to spread, our friends like Cindy Cohn, Trevor Timm, Hanni Fakhoury and Kurt Opsahl et al at EFF, and Ben Wizner, Alex Abdo, Catherine Crump et al at the ACLU all do remarkable work. Share your tax deductible love with them this season if you can. They make us all better off.]