Jack Goldsmith

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The Warmongers Hang Out the Insular Bumblers

At the risk of being misunderstood as defending Susan Rice, let me explore a couple of things about this article, complaining about her “bumbling” as National Security Advisor.

3,000 words into a 3,500 word article, this sentence — which I believe is the real point of the story — appears.

And the larger question is whether Hagel’s mostly inward focus on budget and morale issues at the Pentagon is the right focus now—instead of helping to project American power abroad amidst spiraling global crises.

That is, the article expresses the viewpoint of a bunch of mostly anonymous people who believe that “projecting American power” (in the form of military presence) is the solution to the multiple crises in the world today, including the Ebola epidemic. Underlying it all is a complaint not only that Obama isn’t projecting enough tanks and planes, but he’s daring to cut DOD’s budget.

Along the way, the article complains that the White House:

  • Did not consult with “the Pentagon” before sending a plan to combat ISIL to Congress (though the White House may have consulted with Chuck Hagel and Martin Dempsey)
  • Did not alert either Chuck Hagel’s office or “the Pentagon” before asking Congress to withdraw the 2002 AUMF authorizing force against Saddam Hussein but not Islamic terrorists in Iraq
  • Sought Congress’ authorization to use military force in Syria, which led instead to partial CW disarmament by Bashar al-Assad
  • Picked insider Ron Klain to deal with the Ebola crisis that is already being dealt with by CDC

It also complains about Chuck Hagel’s low visibility and the fact he let Dempsey undercut the President’s claims about boots on the ground in Iraq.

Now, I agree with the complaint — if true — that the initial plan sent for ISIL wasn’t sufficiently vetted. It sounds like something the Saudis wrote, which might suggest the Saudis wrote it, which given the Saudi role in fostering ISIL, would be deeply alarming but not at all surprising.

And I agree that the White House appears to run from crisis to crisis like 6 year olds on a soccer field (though I’m not 100% convinced that reflects reality, rather than a response to a political need to appear to be in crisis mode). I even agree there is abundant reason to be skeptical of the Administration’s strategy, though Michael Hirsh doesn’t even consider that they might have one, which seems to overlook hints of an effort to rework the regional structure of the Middle East.

But ultimately, these criticisms serve another purpose: to complain that Obama is not rushing into full-scale war in Iraq and Syria.

To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.

[snip]

With ISIL still on the move in Iraq and Syria, and the air strikes that Obama announced on Sept. 10 proving to be of dubious effectiveness, many military experts say this is the moment to beef up the U.S. presence with close combat advisers and spotters on the ground who can guide in heavier and more precise airstrikes, as well to provide more U.S. trainers. But the president’s “no boots on the ground” pledge has paralyzed discussion, despite Dempsey’s lonely effort to open the door slightly to the possibility of bringing in such advisers.

There is never the hint of consideration that the solution may perhaps be less military involvement, not more, the last decade of evidence notwithstanding. Nor is there consideration of the possibility that the reason Obama seems so lackadaisical is because he has different goals in Syria than they do, not least to get beyond the election and force the Middle East to start putting some skin in their own security demands.

There’s never the hint of consideration that projection of American power is part of the problem, not the solution.

That’s my general complaint about the article. But I’m also very fascinated by this passage.

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

“The authorities were still needed”?? Two and a half years after we withdrew troops from Iraq?

Before I explain my interest in the passage, consider this response from a guy who was Special Counsel to DOD while the Iraq War AUMF was being drawn up, and later interpreted the scope of that AUMF while Assistant Attorney General at OLC, Jack Goldsmith.

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

In context, Goldsmith makes an enormous logical leap. That we need some kind of authorization if we’re going to go back to war in Iraq in no way means we need an AUMF crafted — at least as far as those of us who weren’t privy to the process are concerned — to fight an entirely different war. Nothing about Obama’s subsequent decision to go to war suggests we need that AUMF — and almost every observer who wasn’t involved in crafting and interpreting that AUMF disagrees about its applicability in this case.

But Hirsh’s “senior defense official” source seems to be saying something even more. In July 2014 DOD believed “the authorities” provided by Congress in 2002 to fight Saddam “were still needed.” Not, “would be needed” if we put all the boots on the ground this article seems to endorse. But “were still needed.”

That leads me to suspect the entirely unsurprising hypothesis that DOD never stopped relying on (or had already resumed relying on) the AUMF for … something.

It’s not out of the question, for example, that whatever JSOC forces that were part of CIA’s boots on the ground that started at least by June 2013 were “relying” on the totally inapt 2002 AUMF. It’s possible that, even when JSOC gets “sheep-dipped” into CIA ops, it still likes to have an AUMF lying around so it can claim that its un-uniformed soldiers operating off of a battlefield are entitled to the same combatant’s privilege they would be if they wore a uniform on a recognized battlefield.

Or it could be DOD never really pulled all its troops from Iraq. Because someone has to manage the contractors after all. There were reports, for example, as ISIL advanced on Kirkuk, that we’ve always had troops there.

If either is the case, I can see how DOD might react badly to these lines from Rice’s letter asking to have the AUMF withdrawn.

As the President unequivocally stated in late June, “American forces will not be returning to combat in Iraq,…”

[snip]

With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq.

After all, if ground forces already were in Iraq, and if DOD works under the assumption that its covert special forces obtain combatant status from these AUMFs lying around, it would explain why they were so cranky that Rice moved to withdraw it.

But there must be some explanation, because unless it was in use in July, months before Obama overtly started engaging ISIL in Iraq, there’s no basis for DOD to complain.

It sure seems like the Iraq AUMF has been secretly redefined (maybe even was when Goldsmith was still at DOD), just like the 2001 AUMF.

 

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).

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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

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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.

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Emptywheel Twitterverse
bmaz @Crimefile Um Crimefile, you are better than to retweet a complete dipshit like Johnson.
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bmaz @woerma_wenhua I read it a LONG time ago, but seeing the movie again reminds me how much more textured the book was.
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bmaz "Benevolent Protector Daddies" like Hayden, Alexander and Rogers are EXACTLY the modern day Gen James Matoon Scott's we should worry about.
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bmaz @woerma_wenhua Have you read the book? I did when I was young, and its better than even Frankenheimer's film. I highly suggest it, even now
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bmaz Damn if John Frankenheimer movies don't hold up incredibly well, despite their period settings. John was a master, and a great guy.
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bmaz @TimothyS And exactly who else put the issue squarely in front of the public?
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bmaz Today's Jiggs Casey is Edward Snowden. But surveillance statists would rather mock than think about those implications.
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bmaz In the surveillance state/military/industrial complex of today, the heroic whistleblower would look like Edward Snowden, not a Marine.
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bmaz The joke of history is that the craven and unconstitutional scope of the NSA makes Frankenheimer/Knebel's ECONCOM look like a piker.
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bmaz I would love to see @TheOliverStone remake Seven Days In May. Lawdy, that would be awesome.
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bmaz RT @jfeckstein: @bmaz Ripe for a reboot. HBO miniseries.
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bmaz @jfeckstein I screwed up that retweet! But, hell yes!
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