Jack Goldsmith

1 2 3 8

Hospital Hero Jack Goldsmith, the Destroyer of the Internet Dragnet, Authorized the Internet Dragnet

As I noted earlier, I think the re-release of Jack Goldsmith’s May 6, 2004 OLC memo authorizing Stellar Wind is meant to warn Congress that the Executive does not believe it needs any Congressional authorization to spy on every American – just in time for the USA Freedom Act debate in the Senate. This is exactly parallel to similar provocations during the Protect America Act debate. In the past, such provocations led Congress to capitulate to Executive branch demands to tailor the program to their wishes.

That earlier post, however, implied that this warning pertains primarily to the phone dragnet.

It doesn’t. The warning also applies to the Internet dragnet (and I suspect that stories about the heroic hospital heroes shutting down the Internet dragnet have been dramatically overblown).

One of the very few things — aside from the name STELLAR WIND, over and over, as well as references to content collection that could have been released after President Bush admitted to that part of the program in 2005, and the title Secretary of Defense — that has been newly revealed is this bit of the Table of Contents (here’s the previous release for comparison).

Screen Shot 2014-09-06 at 1.05.11 PM

 

It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment. That already makes it clear that part IV is about metadata. The last sentence of the first full paragraph on page 19 does, too. Page 7 makes it clear that Fourth Amendment analysis applies to “both telephony and e-mail.” Much later in the memo, it becomes clear this section — pages 96 to 100 — deals with Internet metadata.

In fact, the only substantive newly unredacted parts of the memo appear on 101 (PDF 69) and then from 106 to 108.

All of this new information makes it clear that Goldsmith asserted that Smith v. Maryland applied for metadata — and applied to both phone and Internet metadata. Remarkably, in that analysis, the government keeps at least one paragraph addressing phone metadata hidden, but reveals the analysis at 106-7 (PDF 74-75) that applies to Internet. (Goldsmith’s claim that Internet users can get providers to turn off spam, at the bottom of 107, is particularly nice.)

In perhaps the most interesting newly released passage (out of the roughly 5 pages that got newly released!), Goldsmith absolves himself of examining what procedures the government was using in its “metadata” collection.

As for meta data collection, as explained below, we conclude that under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), the interception of the routing information for both telephone calls and e-mails does not implicate any Fourth Amendment interests.85

85 Although this memorandum evaluates the STELLAR WIND program under the Fourth Amendment, we do not here analyze the specific procedures followed by the NSA in implementing the program.  (101/PDF 69)

I find this utterly damning, given that we know that, for the following 5 years, the government would lie to FISC about whether their “metadata” contained content. Even the OLC opinion built in the Executive’s ability to collect content in the guise of metadata!

In any case, what is clear — again, just in time to impact the debate over USA Freedom, for which prospective call record collection might or might not be limited to telephone content — is that rather than legally shutting down the Internet dragnet in 2004, Jack Goldsmith authorized it.

And that authorization remains in place, telling the Executive it can collect Internet (and phone) “metadata” whether or not FISC or Congress rubberstamps it doing so. Not only that, but telling the Executive this analysis holds regardless of how inadequate their procedures are in implementing this program to ensure that no content gets swept up in the guise of metadata (which of course is precisely what occurred).

So the Administration, in releasing this “newly unredacted” memo did one thing. Tell Congress it will continue to collect phone and Internet “metadata” on its own terms, regardless of what Congress does.

Only one thing could alter this analysis of course: if the Courts decide that Smith v. Maryland doesn’t actually permit the government to collect all metadata, plus some content-as-metadata, in the country, if they say the Executive can’t actually collect “everything there is to know about everybody and have it all in one big government cloud,” as 2nd Circuit Judge Gerard Lynch described the implications of what we now know to be Goldsmith’s logic on Tuesday. But the courts are going to stop analyzing this question as soon as Congress passes USA Freedom Act. Moreover, the last check on the program — the unwillingness of providers to break the law — will be removed by the broad immunity provision included in the bill.

Not only didn’t Jack Goldsmith heroically legally shut down the Internet dragnet in 2004 (clearly President Bush did make several modifications; we just still don’t know what those are). But he provided a tool that is likely proving remarkably valuable as the Executive gets Congress and privacy NGOs to finish signing off on their broad authority.

The hospital heroes may have temporarily halted the conduct of the Internet dragnet — even while telling Colleen Kollar-Kotelly she had to rubber stamp ignoring the letter of the law because Congress couldn’t know about the dragnet — but they didn’t shut it down. Here it is, legally still operating, just in time to use as a cudgel with Congress.

Update: One other thing other reporting on this is missing — and not for the first time — is that whatever change they made to the Internet dragnet, it was by no means the only change after the hospital confrontation. They also took Iraqi targeting out (in some way). And there was a later April 2 modification that appears to have nothing to do with NSA at all (I have my theories about this, but they’re still theories). So it is too simple to say the hospital confrontation was exclusively about the Internet dragnet — the public record already makes clear that’s not the case.

Executive Still Hiding Its Phone Dragnet Self-Authorization, While Making Sure We Know It Has It

Screen Shot 2014-09-06 at 9.48.41 AM

Back in February, Ron Wyden got then acting OLC head Caroline Krass to admit that Jack Goldsmith’s May 6, 2004 Stellar Wind authorization remained active. Although they could rely on it at any time, Krass suggested they weren’t, because FISA currently authorizes the very same phone dragnet that OLC authorized a decade ago.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

[snip]

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Last night, the government finally released a new version of that memo, reflecting all the things that have been declassified thanks to Edward Snowden’s leaks.

And it shows that a 15-page section of the memo authorize(s) the phone dragnet.

Only, that section is entirely redacted.

Even after the phone dragnet has been declassified for 15 months, the Executive refuses to show its claim that it can engage in that dragnet with or without Congressional authorization.

Understand what this amounts to: The Executive just waved its dick around in advance of Congressional action that may or may not reauthorize this program. It said, to Congress and to us, that it will continue operating its phone dragnet with or without Congressional authorization.

For what it’s worth, I think that’s a bluff. I believe Verizon would refuse to cooperate without explicit authorization from Congress and legal mandates it can show. But the Executive is, at least, trying to send a message that it doesn’t believe it needs anything so piddly as Congressional approval to spy on every single American.

The Hospital Confrontation Heroes of Rule of Law Gutted Separation of Powers

Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?

It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.

Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.

[snip]

The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.

They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.

Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.

The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.

DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.

And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”

You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?

Nope, neither do I.

Ashcroft, Comey, Goldsmith, and Baker: “All” Is the “Best” Reading of “Relevant”

Four MusketeersTowards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

This is why you should not have secret courts.

I get making an aggressive push to authorize dragnet surveillance.

I get mining old and foreign dictionaries to come up with a definition that suits your needs.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.

Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”

The Other Authority for the Phone Dragnet

Back in February, I noted Ron Wyden’s question for then acting OLC head Caroline Krass (she’s now CIA’s General Counsel) about Jack Goldsmith’s 2004 OLC opinion authorizing the dragnet.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

This is an exchange Center for National Security Studies Kate Martin brings back into the discussion of whether USA Freedumber actually ends bulk collection.

[W]e don’t know whether the Justice Department has opined that other statutory authorities – not now addressed in the USA Freedom Act – could authorize the NSA’s bulk collection.  Without this knowledge, we can’t be certain whether the proposed amendments to section 501 (215) will in fact be sufficient to prohibit the NSA from engaging in bulk collection of metadata using some other hitherto unidentified authority.

This is not a fanciful concern.  There is in fact a still partly secret OLC opinion by the Justice Department that may address precisely this question.

CNSS is using the debate over USA Freedumber to demand the Administration declassify the rest of that opinion.

When the government declassified the statements submitted in the Jewel v. NSA case last December, it basically declassified everything that should be in that memo. So what’s the holdup on releasing the memo itself?

NSA Collection: Show Me the $$

As part of its superb piece on NSA spying on Tuesday, Frontline included interviews with key sources. In my opinion, the most enlightening was that with former HPSCI staffer Diane Roark, so you should read that entire interview (especially her comments on NSA at 9/11).

Both she and Tom Drake mention a part of the illegal NSA program that has been largely forgotten: the financial records. Here’s Roark’s non-denial.

And from what you knew at that point, what type of information was taken, and how pervasive was the collection?

It is now quite obvious, since the Snowden revelations, that the program grew progressively over time. Initially, I knew that it involved a lot of broad domestic surveillance, bulk collection, domestically. And I knew that it involved emails, landlines, regular house phones, cell phones. I also knew that they had branched out into non-communications data.

Which is what, bank records? 

I’m not really — they have not acknowledged that. All I can tell you is that when I met the second time with Gen. Hayden in July, I said to him that it appeared the program was expanding, not only in number of servers, but also that two new data categories had recently been added, and he nodded to confirm that. I knew that one of those data programs was not communications data. …

And other commentators have made allusions to other personal data that may be collected. Of course, we all know that transportation data, airline data is connected. We know that international banking data is collected; that has been acknowledged. But there have been allusions to other items, too, by people hypothetically, such as credit, medical, banking and so on.

And here’s Drake’s more explicit mention of it.

You watched the president [George W. Bush] come out and say this is a valuable program; one side of the communications has to be outside; we’re following terrorists; this has prevented attacks on our country. The vice president [Dick Cheney] attacks the Times for publishing. You’re watching this, and you know what’s going on inside. What are you thinking?

This actually was part of the triggering event for me in which increasingly I knew I was going to have to touch the third rail, back to your earlier question. I realized that they were lying, that they were desperate to protect the domestic surveillance program. And so they could use the excuse, although it was still in violation of FISA, that as long as one link somehow was tied to a suspected terrorist, that justified collecting or targeting the link that was in the United States proper.

That was just the tip of the iceberg. The far larger program was the dragnet surveillance, the vast bulk copy of millions and millions of phone records, email records, Internet usage and financial transactional and credit card information.

Since the Snowden leaks started we’ve heard almost nothing about this. There have been the two stories about the CIA collecting Western Union records with at least one end foreign. There is the 2010 Section 215 order tied to an allegedly specific investigation, which must long post-date the CIA-related orders.

What happened to this collection? Is it the April 2, 2004 modification we have never learned about? Is it the second secret Section 215 appendix included in Glenn Fine’s 2008 report? Have they been accomplishing this via NSLs, or perhaps only recently moved it to Section 215? I have suggested in the past that for domestic records, FBI would be the likely lead … is that right?

The financial records collection has, outside of Shane Harris’ book (on TIA), completely disappeared.

But it must be under a new shell somewhere.

John Brennan’s Parallel “Investigative, Protective, or Intelligence Activity”

Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.

I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”

It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy.  The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:

Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;

I believe that the CIA Director delegates this duty to the CIA General Counsel.

Note how low the bar is for the referral—possible violations of federal law.  Think about what that low standard means.  It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law.  As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.”  It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]

Nice try.

But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,

The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).

In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”

Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?

But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.

Continue reading

Jack Goldsmith’s Still Active Presidential Dragnet Authorization

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)

Did CIA Lie to DOJ about When They Tortured Hassan Ghul?

As I noted in January, comments Mark Udall made in the course of confirming Stephen Preston to be DOD General Counsel make it clear that CIA’s lies about a detainee generally believed to be Hassan Ghul are one of the new revelations in the Torture Report. For a number of reasons, I believe one thing CIA lied to DOJ about is when they tortured Ghul.

As I’ll show in a follow-up post, the question of when they tortured Hassan Ghul may reflect not just on the torture program, but also on the dragnet.

The public record claiming Ghul was tortured in July and August, 2004

We can lay out a rough timeline of the torture of the detainee believed to be Ghul based on several data points. First, Jay Bybee’s response to the Office of Professional Responsibility report (see page 22) makes it clear a July 2, 2004 Principals Committee meeting pertained to detainee “Janat Gul,” custody of whom CIA had reportedly (see PDF 59) just obtained (Bybee would not have been at the meeting — he had become a Circuit Court Judge over a year earlier — so he must be relying on what the OPR report says).

In addition, we can trace back the documents leading up to a reference to “Gul” in the May 30, 2005 CAT memo (see page 7). That reference describes an August 25, 2004 letter that asked for permission to use — among other things — water dousing and abdominal slaps. The approval to that request, dated August 26, 2004, cites the August 25 letter, an August 2, 2004 letter from John Rizzo, and a July 30, 2004 letter. An August 6, 2004 letter approving waterboarding also cites the August 2 Rizzo letter.

In the August 10, 2005 Techniques memo, some of these same documents are cited; the memo also reveals its subject was obese and had heart problems. Although the Techniques memo approved waterbaording, it said it was not used with the subject of the memo because of a medical contraindication.

All of this would seem to give the following chronology for Hassan Ghul’s torture (assuming he is the detainee referred to as Gul):

July 2, 2004: CIA obtains custody and in a Principals Committee meeting discusses his torture

July 7, 2004: Goldsmith provides guidance on acceptable techniques

July 22, 2004 (5 days after Goldsmith’s departure): John Ashcroft approves the use of all Bybee Memo techniques, except for waterboarding

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level in advance of election year threats, announces surveillance of financial institutions, though reports are years old

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on “pre-election” threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting “at which elements of the pre-election threat were discussed”

August 26, 2004: Levin approves four new techniques with Ghul, including water dousing

This chronology suggests DOJ repeatedly told CIA waterboarding was not permissible in the weeks after Jack Goldsmith withdrew the Bybee Memo, but after the National Security establishment raised the threat level on August 1 because of years-old surveillance in the US, DOJ relented and approved waterboarding with Ghul. Subsequently, it appears, CIA decided Ghul was not healthy enough — either because of his heart condition or his obesity — to undergo waterboarding, so they instead water doused him in near-freezing temperatures.

The problem with this chronology

There is just one problem with that chronology: the CAT memo discusses two detainees (see page 6). The description of the first detainee — someone involved in the alleged 2004 pre-election threat — mentions the August 25 letter which elsewhere in the memo ties to Gul by name.

Continue reading

The Common Commercial Services OLC Opinion Affecting Cyber Policy Is Over a Decade Old

I’ve been meaning to go back to an exchange that occurred during Caroline Krass’ confirmation hearing to be CIA’s General Counsel back on December 17. In it, Ron Wyden raised a problematic OLC opinion he has mentioned in unclassified settings at least twice in the last year (he also wrote a letter to Eric Holder about it in summer 2012): once in a letter to John Brennan, where he described it as “an opinion that interprets common commercial service agreements [that] has direct relevance to ongoing congressional debates regarding cybersecurity legislation.” And then again in Questions for the Record in September.

Having been ignored by Eric Holder for at least a year and a half (probably closer to 3 years) on this front and apparently concerned about the memo as we continue to discuss legislation that pertains to cybersecurity, he used Krass’ confirmation hearing to get more details on why DOJ won’t withdraw the memo and what it would take to be withdrawn.

Wyden: The other matter I want to ask you about dealt with this matter of the OLC opinion, and we talked about this in the office as well. This is a particularly opinion in the Office of Legal Counsel I’ve been concerned about — I think the reasoning is inconsistent with the public’s understanding of the law and as I indicated I believe it needs to be withdrawn. As we talked about, you were familiar with it. And my first question — as I indicated I would ask — as a senior government attorney, would you rely on the legal reasoning contained in this opinion?

Krass: Senator, at your request I did review that opinion from 2003, and based on the age of the opinion and the fact that it addressed at the time what it described as an issue of first impression, as well as the evolving technology that that opinion was discussing, as well as the evolution of case law, I would not rely on that opinion if I were–

Wyden: I appreciate that, and again your candor is helpful, because we talked about this. So that’s encouraging. But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?

Krass: No I do not currently have that authority.

Wyden: Okay. Who does, at the Justice Department?

Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will  come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.

Wyden: I appreciate that and you were very straightforward in saying that. What concerns me is unless the opinion is withdrawn, at some point somebody else might be tempted to reach the opposite conclusion. So, again, I appreciate the way you’ve handled a sensitive matter and I’m going to continue to prosecute the case for getting this opinion withdrawn.

The big piece of news here — from Krass, not Wyden — is that the opinion dates to 2003, which dates it to the transition period bridging Jay Bybee/John Yoo and Jack Goldsmith’s tenure at OLC, and also the period when the Bush Administration was running its illegal wiretap program under a series of dodgy OLC opinions. She also notes that it was a memo on first impression — something there was purportedly no law or prior opinion on — on new technology.

Yet for some reason, it was not among the opinions Goldsmith chose to withdraw in 2004 (assuming he didn’t write it), nor will Eric Holder even respond to questions about why he won’t withdraw it now.

I wonder if Wyden has asked whether some opinion written since that time relies back on that 2003 opinion, just as the illegal wiretap programs relied back on Yoo’s Fourth Amendment stripping one?

1 2 3 8

Emptywheel Twitterverse
bmaz @WesleyLowery @SariHorwitz In fairness, nobody who actually understands CRD jurisdiction ever thought there would be charges.
8mreplyretweetfavorite
bmaz @the_intercept @ggreenwald You should put a link to the media petition in that post.
20mreplyretweetfavorite
bmaz RT @iMusing: Fuck this shit: Boys get chemistry, engineering & astronomy. Girls get science with a sparkle http://t.co/8Bd1aKcO0b Via @abso
44mreplyretweetfavorite
bmaz @RKTlaw I have I think, but can't remember where.
53mreplyretweetfavorite
bmaz @Javakev Welp, gonna be hard, he is running unopposed.
55mreplyretweetfavorite
bmaz @Javakev Far as I can tell, he was last reelected in 2010 and is up for reelection right now.
1hreplyretweetfavorite
bmaz No ordinary grand jury is EVER conducted the way McCulloch is conducting the #MikeBrown grand jury. Never.
1hreplyretweetfavorite
bmaz Bob McCulloch's biased+conflicted antics in handling #MikeBrown grand jury are an embarrassment to justice system. People should be outraged
1hreplyretweetfavorite
bmaz But when it comes to fairness and justice for the actual victim, #MikeBrown, Bob McCulloch is apparently willing to do nothing.
1hreplyretweetfavorite
bmaz So, Bob McCulloch will do EVERYTHING imaginable to give "fairness" to Darren Wilson, things he admits even he has NEVER done before.
1hreplyretweetfavorite
bmaz With a larger grand jury panel, eliminating one juror would not create nearly the damage to credibility it will for #MikeBrown GJ grand jury
1hreplyretweetfavorite
bmaz By eliminating a grand juror, only 11 would be left and the percentage necessary to indict goes up from 75% to 82%. McClloch prob likes that
1hreplyretweetfavorite
October 2014
S M T W T F S
« Sep    
 1234
567891011
12131415161718
19202122232425
262728293031