160 days ago, Jim Sensenbrenner released a letter to Eric Holder expressing concern about the way DOJ had interpreted Section 215. In it, he did some creative editing to hide that he had had an opportunity to learn about that interpretation before he voted to reauthorize the PATRIOT Act.
160 days ago, I was (I believe) the first person to point out that obfuscation.
In those 160 days, I have also documented the serial lies and obfuscations of people like Keith Alexander, James Clapper, Robert Mueller, Mike Rogers, Valerie Caproni, Dianne Feinstein, Raj De, and Robert Litt. (one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three; trust me, this is just a quick survey). The most recent of these lies came last week when Raj De and Robert Litt claimed Congress had been fully informed about the authorities they were voting on, a claim which the Executive Branch’s own record proves to be false.
In spite of the clear imbalance between the lies NSA critics have told and those NSA apologists have told, Ben Wittes has made it a bit of a hobby to use Sensenbrenner’s single (egregious) lie to try to discredit NSA critics (without, of course, pointing out the serial, at times even more egregious, lies NSA apologists were telling). Of late, Wittes has harangued that, because he told a lie 160 days ago, Sensenbrenner is operating in bad faith when he criticizes NSA’s programs now. (See also this post.)
I have never questioned the good faith of Senators Patrick Leahy, Ron Wyden, or Rand Paul. They are legislators with a perspective. That’s how Congress works.
Rep. James Sensenbrenner is a different matter.
Since the bulk metadata program broke, the former chairman of the House Judiciary Committee has been on a campaign of denunciation of both agency activity under the Patriot Act—the law he helped write. And he has been denouncing the administration for having misled him about how Section 215 is being used too. He has done so with a breathtaking dishonesty that puts him in a different category from those members who have a policy dispute with the administration. [my emphasis]
Mind you, Wittes did not examine the content of Sensenbrenner’s more recent claims. Had he done so, he might have realized that the record supports Sensenbrenner’s complaints, even if the messenger for those complaints might be less than perfect.
It ignored restrictions painstakingly crafted by lawmakers and assumed a plenary authority never imagined by Congress. Worse, the NSA has cloaked its operations behind such a thick cloud of secrecy that, even if our trust was restored, Congress and the American people would lack the ability to verify it.
Note, we’re still learning the full extent of how the Executive Branch blew off limits placed on the PATRIOT authorities.
Wittes might even have noted Sensenbrenner’s apparent commitment to do his own job better.
“I hope that we have learned our lesson and that oversight will be a lot more vigorous,” Sensenbrenner said.
Even ignoring Wittes’ remarkable double standard, in which he suggests Sensenbrenner’s one lie should disqualify him from speaking on this topic forever while Clapper and Alexander’s seeming addiction to lies apparently shouldn’t even be mentioned in polite company, a highly regarded expert recently laid out new evidence for why Sensenbrenner has good reason to be angry, regardless of his role in passing PATRIOT in 2001 or 2006 or 2010 or even 2011.
It was about what you’d expect: Dianne Feinstein and Saxby Chambliss claimed they were making changes that don’t amount to much, at least four Senators filibustered themselves so they wouldn’t have to ask any questions (and therefore betray ignorance).
And of course, Ron Wyden and Mark Udall tried to ask questions.
The problem is, Dianne Feinstein had already deviated from normal Senate policy by giving Senators just 5 minutes to ask questions (that is the practice in the House, which is why House hearings are so much more stupid than Senate ones, generally).
Which meant that when Ron Wyden asked his first question — about geolocation — General Keith Alexander knew he could filibuster. As he did.
Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won’t be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?
Gen. Keith Alexander (Alexander): Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware, —
Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?
Alexander: We did. We sent that — as you’re also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper’s July 25th response to this question. So what I don’t want to do, Senator, is put out in an unclassified forum anything that’s classified there so I’m reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.
Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I’ll have additional questions on the next round. Thank you, Madam Chair. [my emphasis]
Wyden deferred his further questions to the second round.
But when the first round ended, DiFi said they didn’t have time for a second one, because they had to move onto the two non-governmental witnesses, Ben Wittes and Tim Edgar. Wyden tried to just ask his questions quickly, but Susan Collins objected.
Wittes — who recently admitted that he is an NSA apologist, according to the dictionary definition of the term — had an unfettered (and unsworn) opportunity to read his statement, which seemed to take up far more than the 5 minutes Wyden got to exercise oversight (the entire statement, with admittedly long footnotes, was 13 pages, though I’m not certain he read it all).
Effectively, then, Wittes’ mere presence served as a means to silence people asking real questions about NSA. DiFi claimed she had invited James Clapper and Keith Alexander to set the facts straight, but then made sure they’d be able to filibuster any effort to liberate a stray fact or two.
Next time he accuses Congress of being NAKED!, I do hope he remembers that his very presence has been used to prevent elected members of Congress from asking the questions Wittes is so sure the government is forthcoming in answering.
Pentagon Papers era NYT Counsel James Goodale has a piece in the Guardian attracting a lot of attention. In it, he says the first step to reform NSA is to fire the liars.
The NSA has lied to the Congress, the courts, and perhaps even to the president himself, but no one seems to care.
The Director of National Intelligence James R Clapper admitted he lied to Congress about the NSA metadata collection program. He said the NSA had no such program – and then added that that was the least “untruthful” remark he could make. General Keith Alexander, director of the National Security Agency, lied in 2012 that the NSA does not hold data on US citizens, and repeated similar misstatements, under oath, to Congress about the program:
We’re not authorized to do it [data collection on US citizens], nor do we do it.
NSA lawyers lied to secret Fisa court Judges John D Bates and Reggie B Walton. In recently released opinions, Bates said he had been lied to on three separate occasions and Walton said he had been lied to several times also.
But Clapper and Alexander have not been held in contempt of Congress. Nor have the Justice Department attorneys, who lied to Judges Walton and Bates, been disciplined.
And while he links to many of the best examples of James Clapper and Keith Alexander lying, he misses this.
Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) today announced the committee will hold an open hearing to consider legislative changes to the Foreign Intelligence Surveillance Act, to include the NSA call records program, on Thursday, September 26, at 2 p.m.
WHAT: Public hearing on FISA, NSA call records
- Director of National Intelligence James Clapper
- National Security AgencyDirector General Keith Alexander
- Deputy Attorney General James Cole
- Ben Wittes, Brookings Institution
- Tim Edgar, Watson Institute for International Studies, Brown University
So DiFi’s idea of an “open hearing” is to invite two established liars. And for her non-governmental witnesses, one keeps declaring Congress NAKED! in the face of evidence the government lies to them, and the other tells fanciful stories about how much data NSA shares.
It’s like DiFi goes out of her way to find liars and their apologists to testify publicly.
That’s nothing new, though. Those other two open hearings? The Global Threat Assessment hearing where Clapper assured Ron Wyden the NSA didn’t collect data on millions of Americans. And the confirmation hearing for John Brennan, who once claimed the US had killed no civilians in an entire year of drone strikes (and, if his odd mouth gestures were the tell they appeared to be, he lied about leaks to journalists including on UndieBomb 2.0 in the hearing as well.)
It’s DiFi’s committee. And if she wants every single open hearing to serve as a platform for accomplished liars, I guess that’s her prerogative.
But observers should be clear that’s the purpose of the hearings.
As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.
The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:
The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”
The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.
But then the Post piece brings up our old friend, the OLC:
The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.
The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”
A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.
“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”
This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.
I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Continue reading
The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.
The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.
Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.
But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:
I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.
I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.
Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:
We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.
A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.
The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.
Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.
In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.
UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:
First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.
Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.
Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.
[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]
Jack Goldsmith and Ben Wittes have an op-ed up in which, claiming that the PR value to military commissions is minimal, Obama should just not give KSM a trial of any sort. They make a clever move in which they first cursorily dismiss the value of civilian trials.
A trial potentially adds three things: the option of the death penalty; enhanced legitimacy in some quarters, especially abroad; and a certain catharsis and historical judgment in the form of a criminal verdict.
These are non-trivial benefits, but as the battle over the past few months has shown, they come at great cost. Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant for the administration — unaffordably high, it seems to be turning out.
They make no consideration of the importance of a trial for our rule of law, our system of justice. And fail to consider any potential direct benefit in showing potential terrorists that we don’t stoop to the arbitrary authoritarian ways of the oppressive countries many of them are fighting. This is not about impressing Europe, as they seem to suggest, but about impressing young Saudis or Pakistanis, showing them the rule of law.
And from there, Goldsmith and Wittes treat the political debate over civilian trials equally cursorily. They might consider, after all, the reasons why civilian trials have become so costly: the fact that Dick Cheney and his daughter, trying to avoid any consequences for instituting a torture regime, are paying a lot of money to sow fear about civilian trials.
It’s a political ploy. Nothing more. Yet one that plays to the weaknesses of someone like Rahm, who apparently doesn’t see much value in defending principle. But the political cost doesn’t have to be that high; Obama has just let it be made so.
And so, with those five lines dismissing the value of the rule of law on which our country is based, they go on to focus more on their straw man target, military commissions.
The legal and political risks of using the ill-fated military commission system are also significant. After the Supreme Court offered a road map for a legally defensible system, Congress has twice given its blessing. But serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions’ success and the role of the Geneva Conventions. Sorting out these and dozens of other novel legal issues raised by commissions will take years and might render them ineffectual. Such foundational uncertainty makes commissions a less than ideal forum for trying Mohammed.
Moreover, the public relations and related legitimacy benefits of trying Mohammed in a commission are not that great, especially since the administration insists that he will remain in detention even if acquitted. The possibility that the administration might try him in a commission has been met with anger and disdain by the American left and many European elites, who think commissions are as illegitimate as they believe the underlying detention system to be. They will work hard to delegitimize their proceedings too.
In short, a military commission trial might achieve slight public relations and legitimacy benefits over continued military detention of Mohammed, and might facilitate his martyrdom by ultimately allowing the government to put him to death. But this would add so little to the military detention that the administration already regards as legitimate that a trial isn’t worth the effort, cost and political fight it would take.
Now, there’s a reason Goldsmith and Wittes focus so much more closely on military commissions than civilian trials. That’s because there are real drawbacks to them. They are legally dicey, they are likely to result in years of delay, they actually offer fewer tools with which to try KSM successfully. And of course, Goldsmith and Wittes don’t acknowledge that that is one key basis for criticism of military commissions: they simply won’t be as effective as civilian trials. Instead, they falsely suggest that leftist opposition to military commissions is some nihilist attempt to discredit the trials just for the sake of principle. By making the criticism of not just the left but the military into a strawman, they avoid the fundamental agreement between us and them about the weaknesses of military commissions.
And so, with that canard, Goldsmith and Wittes dismiss the PR value of military commissions, too.
Poof! By weighing our entire legal system as one big PR gimmick (and failing to do that very well) Goldsmith and Wittes manage to decide it’s just not worth all that much.
But the clever op-ed is valuable for something. It shows what a slippery slope Obama is on. Because once you fail to make the case for the principle of rule of law, when you fail to point out the benefits it offers both as a necessary step to reclaim the America that used to inspire others rather than inflame them and as a proven way to adjudicate crimes, then there’s little to distinguish the benefits of civilian trials and the arbitrary rule of indefinite detention. (I’d also say that, short of pointing out that most candidates for indefinite detention are such because they’ve been tortured into craziness by Goldsmith’s former employers, you fail to point out how Cheney’s mistakes have gotten us here.)
Even Eric Holder, who genuinely wants civilian trials, has conceded the possible efficacy of military commissions and indefinite detention. And once you’ve done that, rather than defend the principle and efficacy of civilian trials, you’re on the slippery slope where our entire rule of law is just a big PR ploy. One that can be discarded for arbitrary indefinite detention when it becomes convenient.