Tag Archives: Jack Goldsmith

Ben Wittes Relies on Obviously False Document to Claim Other Document False

By:  Monday April 1, 2013 1:39 pm

For those coming from Wittes’ so-called response to my post, here’s my response to that response, which shows that Wittes effectively cedes the point that Fredman’s memo is dishonest. 

In a post subtitled “Just Shut Up About Jonathan Fredman” (really!) Ben Wittes argues we should not hold former CIA Counterterrorism Center lawyer Jonathan Fredman responsible for paraphrases attributed to him in the Senate Armed Services Committee report on torture because Fredman wrote a memo claiming he didn’t say those things and because he’s a career official, not a political appointee.

Fredman is a personal friend of mine, but this is getting ridiculous. It’s one thing to hold political appointees responsible for the things they did, said, and wrote. It’s quite another thing to hold career officials accountable for things they didn’t say, do, or write.

Now, in point of fact, Fredman’s memo does not deny saying “if the detainee dies, you’re doing it wrong.” He says,

Those notes, which were misleadingly labeled by their author as “minutes,” to the best of my knowledge were never circulated for comment and contain several serious misstatements of fact. Those misstatements were then compounded by the false allegation at the hearing that the so-called minutes contained quotations from me; the first page of those so-called minutes themselves expressly states that “all questions and comments have been paraphrased” — and, I might add, paraphrased sloppily and poorly.

And,

I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.

And,

I noted that if a detainee dies in custody, there will and should be a full investigation of the facts and circumstances leading to the death.

And,

I again emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice;

And, after specifically asserting the paraphrase about the Istanbul conference is inaccurate, Fredman concludes,

I did not say the obscene things that were falsely attributed to me at the Senate hearing, nor did I make the absurd comment about Turkey that the author similarly misrepresented. The so-called minutes misstate the substance, content, and meaning of my remarks; I am pleased to address the actions that I did undertake, and the statements that I did make.

Now perhaps Fredman includes “if the detainee dies, you’re doing it wrong,” in his reference to “obscene things,” but he doesn’t specifically say so.

Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?

Yet Wittes tells us to shut up shut up shut up about his friend, based on that non-denial denial.

Now, in a twitter exchange about Fredman, Wittes assured me he read both the SASC report and the OPR report on torture. So either he’s a very poor reader, or he doesn’t want to talk about how disingenuous it has since become clear Fredman’s memo was.

The rest of the memo is, by itself, proof that Fredman misrepresents his own actions relating to torture.

Continue reading →


Ben Emmerson: Dupe on Two Continents, or Politically Savvy Diplomat?

By:  Monday March 18, 2013 1:41 pm

If I’m not mistaken, the people accusing UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, of condoning lies in his recent report on drone strikes in Pakistan had no such reaction when Emmerson endorsed John Brennan to head the CIA.

That’s not surprising. Some of the same people consistently read articles presenting evidence that Brennan was not the moderating force on the drone program his boosters claimed and yet parroted the headlines of those articles that said he was.

Don’t get me wrong. Like these Emmerson critics, I take Emmerson’s report solely for what it is: a report on what the civilian, democratically-elected leadership of Pakistan wants to say about drone strikes in Pakistan, not a report on what is really going on in Pakistan, largely under the leadership of Pakistan’s permanent shadow government. Indeed, I was one of the first to point out how Emmerson’s inability to talk to Pakistan’s military and ISI in his reporting trip highlighted the differences between what civilian and military in Pakistan were saying, rather than reflected any “reality” on the ground.

What the release does, then, is lay out in stark contrast the degree to which Pakistan’s civilian and military authorities are sending different messages.

I just read Emmerson’s motives to be different than, simply, sanctioning a lie.

Indeed, I think his comments to Spencer Ackerman and Jack Goldsmith’s interpretation on his endorsement of Brennan might offer some insight on how he’s approaching his efforts to put some legal framework on the use of drones internationally, and why he presented Pakistan’s claims with such seeming credulity.

Emmerson told Spencer that while he might not agree with policies Brennan endorses, having him lead CIA would at least make the program more accountable.

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control,” Emmerson says. “It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

“Warts and all” conversations with current and former Obama administration officials convince Emmerson that Brennan tried to steer the drone program from a “technology-driven process” to one that attempted to balance the interests of the law, counterterrorism, and the agencies involved in implementing it. “There are significant elements within the CIA who are unhappy about Brennan’s appointment,” Emmerson says. “These are the hawkish elements inside the CIA who would rather have as a director someone who reflected their agenda, rather than someone who is there to impose the president’s agenda.”

Emmerson says he can’t know if Brennan will actually carry out fewer drone strikes at the CIA. “What I’m saying is, Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.” [my emphasis]

Jack Goldsmith deems Emmerson’s acceptance of the myth that the CIA has been operating in rogue fashion as gullible or naive–critically, some of the same adjectives being used to describe his reporting on Pakistan.

By confirming Emmerson’s ex ante bias that the CIA is a cowboy institution operating lawlessly and beyond presidential control, the officials and former officials who talked to Emmerson are clearly trying to protect the President and the White House (and, no doubt, themselves) from Emmerson’s investigation at the expense of the CIA.  Emmerson’s gullibility or naivete (if those are the right terms) on this matter makes clear what has been pretty clear from the beginning, namely, that the CIA, and not the USG, is his real target.

I would suggest, however, that whether Emmerson is being naive or savvy, the effect is the same. He aggressively supported Brennan taking the helm at CIA (in a way that Goldsmith notes may make his life more difficult at CIA).

A position where, it should be said, Brennan will reportedly be operating outside the Drone Rulebook he himself devised.

But, according to both the analysis of Emmerson and those who are calling him naive, given Brennan’s close relationship with Obama, even those off-rulebook drone strikes will now operate with no plausible deniability. Whether CIA was genuinely operating as a cowboy before or not, going forward it will be almost impossible to argue it is doing so, because Brennan, a very close Obama aide, will be overseeing the program.

I think both Emmerson’s endorsement of Brennan and his presentation of a view the civilian government of Pakistan would like to tell rather than the reality serve the same purpose: To highlight the way drone wars operate within big loopholes of democratic accountability and possibly, to move towards eliminating those loopholes.

Emmerson is a UN diplomat operating with almost no leverage, and I’m not at all confident he’ll succeed.

But his effort seems to understand a point I’ve long made about drones and Rosa Brooks has recently been addressing as well. Beyond any question about efficacy and civilian casualties, conducting drone strikes as we have been undermines the principles of sovereignty (which, it should be said, is an important part of any authority the UN might have over such issues) in both targeted and targeting states.

Maybe I’m misreading Emmerson’s actions as being far more astute than they really are–maybe he is the dupe his critics make him out to be. But he seems to be using his public statements to address the underlying problems with imposing some international legal framework on drones as much as he is the specifics.


Another Republican Lawyer Warns Obama about Legal Problems

By:  Thursday January 31, 2013 2:16 pm

I know it’s probably easy for Obama supporters, if not members of the Administration, to dismiss the warnings of lawyers who fought within the Bush Administration to cloak our counterterrorism policy in legal sanction as trolling.

But you’d think that as Jack Goldsmith and now John Bellinger raise the same kind of warnings they did with Bush, they’d be treated with the same kind of alarm among the pundit class.

I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?”   This article was not intended as partisan criticism but rather as a cautionary note, based on my own eight years of experience explaining US counter-terrorism policies.

At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration.  But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation.  This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies.  I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law.   The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program.  It needs to step up its efforts.

These are not starry-eyed hippies. They’re solidly conservative lawyers. And yet it seems their warnings are being treated with the seriousness they would if I had made them.

One more point. As I traced last year, the White House’s unusual efforts to keep all mention of the “Gloves Come Off” Memorandum of Notification that authorizes many of these counterterrorism programs mapped closely to the exposure of Binyam Mohammed’s torture through an effort very nearly parallel to the suit Bellinger discusses in his post: Noor Khan’s suit against the UK for cooperating in the drone strike that killed his father.

The UK has used various strategies to try to hide its role in US covert operations: effectively a Glomar in this case, and a larger effort to create a secret court to hide our counterterrorism programs.

Maybe these British efforts will work. Maybe this particular ally will succeed in hiding the things we work hard to hide.

But not all of them will be.

The Administration seems increasingly committed to claiming all of this was a covert op, immune even from full disclosure to the Intelligence Committees, to say nothing of ordinary citizens. Perhaps it is so committed in an effort to avoid embarrassing our allies like this.

But it’s not fooling anyone.


16 Words: The New York Times has learned that the US recently sought a drone base in Niger

By:  Monday January 28, 2013 1:21 pm

Ten years ago today, George Bush would lay the ground work for a war with these 16 words.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa

Those words were based on a dubious claim that Iraq had tried to purchase yellowcake from Niger.

Today, the NYT reports that the US wants a drone base in northwest Africa, probably Niger.

The United States military command in Africa is preparing plans to establish a drone base in northwest Africa to increase unarmed surveillance missions on the local affiliate of Al Qaeda and other Islamist extremist groups that American and other Western officials say pose a growing menace to the region.

For now, officials say they envision flying only unarmed surveillance drones from the base, though they have not ruled out conducting missile strikes at some point if the threat worsens.

If the base is approved, the most likely location for it would be in Niger, a largely desert nation on the eastern border of Mali, where French and Malian troops are now battling Qaeda-backed fighters who control the northern part of that country.

As Micah Zenko just noted on Twitter, this base would provide access to conduct drone strikes all over Northern Africa.

And even as the Administration rolls out another front for its drone way, it refuses (or at least refused, as of a few weeks ago) to tell Congress who it is targeting based on what authorization. As Jack Goldsmith has pointed out, conducting drone strikes under such circumstances is not as legally sound as the Administration’s use of drones to strike core al Qaeda targets.

Ten years ago today, Bush’s 16 words launched us towards an illegal war in Iraq. On this anniversary, we need to ask what kind of illegal wars a base in Niger would lead to.


Jack Goldsmith, Open Source OLC Lawyer, to Obama: You’re Breaking the Law

By:  Friday January 25, 2013 3:55 am

Eleven days ago, Senate Intelligence Committee member Ron Wyden sent a publicly released letter to John Brennan making two things clear:

  • The Administration has refused to tell grunt (that is, non-Gang of Four) members of the Senate Intelligence Committee whether its targeted killing program–extending even to the killing of US citizens–is authorized under Article II or AUMF power.
  • The Administration has refused to tell grunt members of the Senate Intelligence Committee which countries it uses “lethal counterterrorism authorities” in.

Nine days later, Jack Goldsmith, a man best known for going to some length to force a President to have credible legal justifications for his counterterrorism programs, wrote this column, offering his advice about “What to do about growing extra-AUMF threats?”

Mind you, Goldsmith is addressing the legal problem presented by (and explaining his column by pointing to) our fight against AQIM in North Africa and al-Nusra in Syria. He is not pointing–at least not explicitly–to the troubling revelations of Wyden’s letter.

But Goldsmith’s advice is directly relevant to the topics on which the Administration refuses to brief the grunt Senate Intelligence Committee members. Goldsmith warns that Article II power–on which it increasingly appears the Administration is relying–doesn’t extend as far as AUMF authority would.

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower. [my emphasis]

And Goldsmith describes the importance of telling Congress–and he’s talking about telling all of Congress, not just grunt Senate Intelligence Committee members–what groups are actually included among legal counterterrorism targets.

Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach. [my emphasis]

Now, let me be clear: Goldsmith never comes out and directly says that the Obama Administration is, currently, breaking the law (and he makes no comment on whether the Administration is violating National Security Act requirements on briefing Congress). And if he did, he’d probably couch it in language about needing the cover of Congressional sanction–more language about Congress “sniping, or worse.” Nevertheless, the clear implication if you take Wyden’s letter in conjunction with Goldsmith’s Office of Legal Counsel-type advice is that the Obama Administration is conducting counterterrorism ops without legal sanction.

But consider what it means that this solidly conservative lawyer is telling the Obama Administration the same thing he had to tell George Bush when the latter relied on John Yoo’s crappy legal advice.

This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.

When Jim Comey, in response Goldsmith’s advice, dramatically stood up to Andy Card and Alberto Gonzales’ bullying in a DC Intensive Care Unit, he did so to convey to them that an “expansive interpretation” of Article II power was not good enough (though according to Tom Daschle’s read of the AUMF discussions, Goldsmith replaced John Yoo’s expansive interpretation of Article II authority with an expansive interpretation of the AUMF).

Goldsmith’s advice, writing without the authority he once had as the confirmed OLC head, and lacking the leverage of an expiring wiretapping authorization or the imposing figure of a 6’8″ Acting Attorney General to deliver his message, may not carry the weight it once did.

But he is offering fundamentally the same warning he did 9 years ago.

Update: This post has been updated for clarity.


Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

By:  Saturday December 29, 2012 1:34 pm

Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

Continue reading →


Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

By:  Friday August 10, 2012 5:29 pm

It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.


The “Most Transparent Administration Ever” Treats Recess Appointments with Greater Secrecy than Illegal Wiretapping

By:  Friday June 15, 2012 1:03 pm

Charlie Savage just released the OLC opinion he got in response to a FOIA on opinions relating to recess appointments (this became an issue after Obama appointed Richard Cordray head of the Consumer Financial Protection Board using a recess appointment). It is a Jack Goldsmith memo dated February 20, 2004.

It is almost entirely redacted. Just 11 lines out of three pages are left unredacted–and one of those reads, “Please let us know if we may be of further assistance.”

Just for shits and giggles, I compared that memo to another Jack Goldsmith memo, one that relates to actual national security issues: Goldsmith’s May 6, 2004 memo finding the revamped illegal wiretap program legal. That’s a 108 page memo, of which 46 pages are entirely redacted or redacted to the same degree as any one of the three pages in this recess appointment one. There are a slew more redactions, many of them obviously improper.

The last line, “Please let me know if we can be of further assistance. (U)” appears unredacted there, too.

Nevertheless, the Administration redacted far more of the earlier Goldsmith memo–the recess appointment one–than the one dealing with one of our most sensitive counterterrorism programs.

Next up, the Administration is going to start redacting Civics textbooks, because the workings of government are so terribly sensitive.


Glomar and CIA’s Propagandistic Campaign of Sanctioned Leaks

By:  Monday June 4, 2012 10:13 pm

The ACLU submits briefs.

In response to Plaintiffs’ January 2010 request under the Freedom of Information Act, the CIA asserted that its use (or non-use) of drones to carry out targeted killings was a “classified fact.” The assertion was far-fetched then, but it is fantastical now.

[snip]

… allowing the CIA to deny the existence of the drone program while it carries on a propagandistic campaign of officially sanctioned leaks would make a mockery of the classification system.

[snip]

Indeed, the Court should approach the CIA’s arguments here with special skepticism, because the volume and consistency of media leaks relating to the CIA’s drone program strongly suggest that the government is relying on the Glomar doctrine in this Court while government officials at the same time, under cover of anonymity, disclose selected information about the program to the media. This kind of campaign of selective disclosure is precisely what FOIA was enacted to prevent.

As you can imagine, the filing makes liberal use of Jack Goldsmith’s post from the other day.

Here’s the nut of it:

The FOIA’s particular concern with selective disclosure should inform this Court’s analysis here. The Glomar doctrine cannot be construed so broadly, or the official acknowledgment exception so narrowly, as to license the very “selective disclosures, managed news, half-truths, and admitted distortions” that the FOIA was meant to preclude. For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent. This Court should vacate the judgment below and order the CIA to process Plaintiffs’ FOIA request.


Jack Goldsmith to John Brennan: Not Good Enough

By:  Thursday May 31, 2012 10:51 am

When he gave a speech to make misleading claims about the drone program, John Brennan claimed his speech fulfilled Jack Goldsmith’s demand for more transparency.

Jack Goldsmith, a former assistant attorney general in the administration of George W. Bush and now a professor at Harvard Law School, captured the situation well.  He wrote:

“The government needs a way to credibly convey to the public that its decisions about who is being targeted, especially when the target is a U.S. citizen, are sound. First, the government can and should tell us more about the process by which it reaches its high-value targeting decisions. The more the government tells us about the eyeballs on the issue and the robustness of the process, the more credible will be its claims about the accuracy of its factual determinations and the soundness of its legal ones.  All of this information can be disclosed in some form without endangering critical intelligence.”

Well, President Obama agrees.  And that is why I am here today.

In response to Brennan’s speech, Goldsmith wrote a mostly-approving post, deeming Brennan’s speech to have fulfilled his call for more transparency.

Brennan’s speech, taken together with earlier speeches on related topics by top government officials, strikes me as meeting if not exceeding the administration’s “good government” duty to explain to the American people the legality and justification for and operation of its targeted killing program.

But in the wake of the NYT and Daily Beast pieces, Goldsmith has intensified a criticism he made in the earlier post: in the face of all this sanctioned leaking, Goldsmith argues, the Administration should not be able to sustain their Glomar invocation in ACLU’s FOIA suits.

The story and the excerpt are based on interviews with dozens of current and former Obama advisors.  They contain fine-grained details about the CIA’s involvement in drone strikes, internal USG processes and deliberations concerning the CIA strikes, internal USG criticisms and defenses of the CIA strikes, and the consequences of the CIA strikes. At the same time that many officials are talking to Becker and Shane and Klaidman about the CIA drone strikes in the hope that the journalists will report what they say, the USG maintains that the CIA can neither confirm nor deny that it has responsive records about its involvement in drone strikes.  The USG’s position is that such a Glomar response is appropriate because there has been no official acknowledgment of CIA involvement in drone strikes, and “whether or not the CIA was involved in drone strike operations . . . is a classified fact.”

He argues that, given all the leaks, the DC Circuit should rule against the government’s Glomar invocation.

The basic question before the CADC is whether this rationale applies to the CIA program.  There are actually at least two questions here: (1) Has the USG officially acknowledged CIA drone strikes?; and (2) Even if the USG has not officially acknowledged CIA involvement in the strikes, should it be required to do so in light of its manipulation of the secrecy system through extensive opportunistic leaks?  On both issues I find myself increasingly in the ACLU camp.

[snip]

I increasingly believe there must be some limit.  Protecting the credibility of foreign governments in places where dangerous terrorists lurk is a relative value, not an absolute one; and at some point a government that consistently and extensively leaks information about covert action should lose the protections of Glomar, even if the purposeful leaks do not amount to official acknowledgment.

While I of course agree that the government shouldn’t be able to claim all the stuff they’re willingly revealing is still classified, I’d like to push something Goldsmith says one step further. He entertains the counter-argument the government might make–that leaking wildly while preserving Glomar provides a kind of accountability–but predicts a narrowing of Glomar won’t hurt this dynamic.

One argument in favor of the government’s practice of leaking information about CIA drone strikes while at the same time insisting on (and receiving) full Glomar protection in FOIA cases is that the system allows the USG to tell the American public about what it is up to while at the same time preserving diplomatic confidences.  In other words, leaks about the CIA drone program can be seen as a democratic-accountability-promoting compromise.  Setting aside that government leaks inevitably serve the interests of the leaker, this argument entails that if the Glomar rationale is narrowed as a result of leaks, the consequence in the next round of covert programs will be less government disclosure through leaks and thus less government accountability.  This is an important argument that underscores the complexities in this area.  I am skeptical, however, because I think he government will continue to leak for multiple self-serving reasons, even if Glomar is narrowed in the covert action context.

Goldsmith admits that these leaks are self-serving. But they are also something else.

Regarding the central issue of the decision-making process Goldsmith emphasized, false.

Continue reading →