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Ninth Circuit Trims Executive’s Expansive Claims to Be Able Pixie Dust Executive Orders

As you’ve surely heard, the Ninth Circuit handed President Trump a huge loss last night, refusing to overturn the nationwide stay on his Muslim ban. The per curium opinion is particularly strong in asserting that courts do have the ability to review Presidential orders, even those that pertain to national security.

But there’s another part of the opinion I’m particularly interested in, because if it is not reversed, it creates a very important new limit on what the President can do with EOs.

One of the problems Trump created for himself was targeting Green Card holders — lawful permanent residents. That’s because LPRs have long term relations with the country and are accorded constitutional protections, both within and outside of the US. So long as LPRs remain affected by the EO, it will be legally problematic, at least as it pertains to them.

The Administration tried to undo that damage by having the White House Counsel, Don McGahn, write guidance on how to interpret the EO, basically stopping its application to LPRs. Within the hearing, the attorney representing the states noted that the Administration’s stance toward LPRs had changed about five times. But it was clear the judges were also unimpressed with changes the WHCO, as opposed to the President, made to an EO.

Here’s where they rule that a WHCO can’t just change an EO with policy guidance.

The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).

In short, they’re arguing that to make the EO legal with respect to LPRs, the President himself is going to have to change the EO, not McGahn.

As most longtime readers know, I’m obsessed by the way that John Yoo pixie dusted EO 12333 by basically saying the President doesn’t have to modify an EO he is blowing off, by blowing it off he is simply modifying it. In a 2001 opinion (and a 2002 letter to the FISC) he wrote,

[T]here is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it.

George Bush used that ruling to be able to disseminate Stellar Wind data even though his EO said you could not disseminate SIGINT.

While this ruling does not directly affect that interpretation, it does suggest that only a President can alter an EO (or, alternately, he must first confirm that someone else modifying it has been delegated the authority to do so). So while it doesn’t entirely shut down the possibility of further pixie dusting, it does make such things harder. It does give people reason to challenge any such changes to an EO.

As I noted the other day, I don’t think John Yoo was so much complaining about Trump’s abuses, as complaining that the way he implemented his abuses might do permanent damage to claims of expansive Executive authority. Let’s hope Trump has already done so by refusing to formally alter an EO his WHCO recognized was vulnerable to legal challenge.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

John Yoo Wishes Trump Abused Executive Authority More Effectively

At the end of a John Yoo critique of Donald Trump’s abuses that a lot of people are mis-reading, he says this:

A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power. He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.

Otherwise, our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.

John Yoo is not stating that, across the board, Trump has overstepped his authority. Indeed, the areas where Yoo suggests Trump has or will overstep his authority — exiting NAFTA and building a wall — are things Trump has not yet put into place. His concern is prospective. The only thing Trump has already done that Yoo believes abused power was firing Sally Yates, and that because of his explanation for firing her.

Even though the constitutional text is silent on the issue, long historical practice and Supreme Court precedent have recognized a presidential power of removal. Mr. Trump was thus on solid footing, because attorneys general have a duty to defend laws and executive orders, so long as they have a plausible legal grounding. But the White House undermined its valid use of the removal power by accusing Ms. Yates of being “weak on borders and very weak on illegal immigration.” Such irrelevant ad hominem accusations suggest a misconception of the president’s authority of removal.

Yoo doesn’t, for example, complain about Trump’s Executive Order on Dodd-Frank, which may have little effect.

But what Yoo is worried about is not abuse, per se, but that Trump will “waste the executive’s powers.”

That’s important given Yoo’s critique of Trump’s Muslim ban.

Immigration has driven Mr. Trump even deeper into the constitutional thickets. Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law. But after the order was issued, his adviser Rudolph Giuliani disclosed that Mr. Trump had initially asked for “a Muslim ban,” which would most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion, or both — no mean feat. Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.

Yoo is saying that Trump could have implemented this policy if only he had gotten better advice about how to hide the fact that it was a Muslim ban, in the same way firing Yates would have been fine had Trump offered another explanation for it.

There’s a big rush among those who’ve abused executive authority in the past to rehabilitate themselves by seeming to criticize Trump. Many of them — including Yoo — are mostly complaining that Trump’s bad execution of abuse of executive power might give it a bad name.

 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Ironies of the EO 12333 Sharing Expansion for Obama and Trump

In one of his first acts as leader of the Democratic party in 2008, Barack Obama flipped his position on telecom immunity under FISA Amendments Act, which cleared the way for its passage. That was a key step in the legalization of the Stellar Wind dragnet illegally launched by George Bush in 2001, the normalization of turnkey surveillance of the rest of the world, surveillance that has also exposed countless Americans to warrantless surveillance.

Bookends of the Constitutional law president’s tenure: codifying and expanding Stellar Wind

So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

I’ve was at a privacy conference in Europe this week (which is my partial explanation for being AWOL all week), and no one there, American or European, could understand why the Obama Administration would give Trump such powerful tools.

About the only one who has tried to explain it is former NSA lawyer Susan Hennessey in this Atlantic interview.

12333 is not constrained by statute; it’s constrained by executive order. In theory, a president could change an executive order—that’s within his constitutional power. It’s not as easy as just a pen stroke, but it’s theoretically possible.

[snip]

When they were in rewrites, they were sort of vulnerable. There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections—or at the very least did not reduce them—that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

[snip]

I think the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.

Hennessey’s assurances ring hollow. That’s true, first of all, because it is actually easier to change an EO — and EO 12333 specifically — than “a pen stroke.” We know that because John Yoo did just that, in authorizing Stellar Wind, when he eliminated restrictions on SIGINT sharing without amending EO 12333 at all. “An executive order cannot limit a President,” Yoo wrote in the 2001 memo authorizing Stellar Wind. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” And so it was that the NSA shared Stellar Wind data with CIA, in violation of the plain language of EO 12333 Section 2.3, until that sharing was constrained in 2004.

Yes, in 2008, the Bush Administration finally changed the language of 2.3 to reflect the SIGINT sharing it had started to resume in 2007-2008. Yes, this year the Obama Administration finally made public these guidelines that govern that sharing. But recent history shows that no one should take comfort that EOs can bind a president. They cannot. The Executive has never formally retracted that part of the 2001 opinion, which in any case relies on a 1986 OLC opinion on Iran-Contra arguing largely the same thing.

No statutorily independent oversight over vastly expanded information sharing

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

Obama vastly expanded information sharing with these procedures without implementing the most obvious and necessary oversight over that sharing, statutorily independent oversight.

Limits on using the dragnet to affect political processes

There is just one limit in the new procedures that I think will have any effect whatsoever — but I think Trump may have already moved to undercut it.

The procedures explicitly prohibit what everyone should be terrified about under Trump — that he’ll use this dragnet to persecute his political enemies. Here’s that that prohibition looks like.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

If you need to say the IC should not share data with the White House for purposes of affecting the political process, maybe your info sharing procedures are too dangerous?

Anyway, among the long list of things the IC is not supposed to do, this is the only one that I think is so clear that it would likely elicit leaks if it were violated (though obviously that sharing would have to be discovered by someone inclined to leak).

All that said, note who is in charge of determining whether something constitutes affecting political processes? The IC agency’s and ODNI’s General Counsel (the latter position is vacant right now). Given that the Director of National Intelligence is one of the positions that just got excluded from de facto participation in Trump’s National Security Council (in any case, Republican Senator Dan Coats has been picked for that position, which isn’t exactly someone you can trust to protect Democratic or even democratic interests), it would be fairly easy to hide even more significant persecution of political opponents.

FBI and CIA’s expanded access to Russian counterintelligence information

There is, however, one aspect of these sharing guidelines that may have work to limit Trump’s power.

In the procedures, the conditions on page 7 and 8 under which an American can be spied on under EO 12333 are partially redacted. But the language on page 11 (and in some other parallel regulations) make it clear one purpose under which such surveillance would be acceptable, as in this passage.

Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:

When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;

Under these procedures generally, communications between an American and a foreigner can be read. But communications between Americans must be destroyed except if there is significant foreign intelligence or counterintelligence focus. This EO 12333 sharing will be used not just to spy on foreigners, but also to identify counterintelligence threats (which would presumably include leaks but especially would focus on Americans serving as spies for foreign governments) within the US.

Understand: On January 3, 2017, amid heated discussions of the Russian hack of the DNC and public reporting that at least four of Trump’s close associates may have had inappropriate conversations with Russia, conversations that may be inaccessible under FISA’s probable cause standard, Loretta Lynch signed an order permitting the bulk sharing of data to (in part) find counterintelligence threats in the US.

This makes at least five years of information collected on Russian targets available, with few limits, to both the CIA and FBI. So long as the CIA or FBI were to tell DIRNSA or NSA’s OGC they were doing so, they could even keep conversations between Americans identified “incidentally” in this data.

I still don’t think giving the CIA and FBI (and 14 other agencies) access to NSA’s bulk SIGINT data with so little oversight is prudent.

But one of the only beneficial aspects of such sharing might be if, before Trump inevitably uses bulk SIGINT data to persecute his political enemies, CIA and FBI use such bulk data to chase down any Russian spies that may have had a role in defeating Hillary Clinton.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

False Reassurances: On Pixie Dusted Executive Orders, Appendix M, and Proxy Detention and Torture

In the wake of Trump’s victory, a number of people have offered some thoughts intended to reassure. In a piece titled, “The United States is not about to spiral into tyranny,” Kevin Drum claimed — among other things — that Trump will have a hard time reversing Obama’s Executive Orders.

Trump will learn that repealing executive orders is harder than he thinks, and it’s unlikely he has the attention span to really keep at it.

And a number of pieces — such as this one from Reuters — point to last year’s language in the NDAA limiting interrogation to techniques that appear in the Army Field Manual.

Trump’s support for water-boarding, an interrogation technique that simulates drowning, also would meet opposition. Congress last year passed legislation barring the use of waterboarding and other “extreme interrogation techniques” widely considered torture. Obama signed the measure into law last November.

Both of those reassurances are overly optimistic.

Pixie Dusting EOs

Even on its face, the idea that Trump can’t reverse Obama’s EOs doesn’t make sense. A president has uncontested authority to pass EOs as he pleases. The only limit on that power is Congress. If sufficient numbers in Congress, backed by sufficiently powerful leaders in Congress, want to contest a president’s public EOs, they can try to legislate or defund an activity.

There is no likelihood of that happening with Trump anytime soon. None. Especially not with the EO that Trump is probably most anxious to reverse, Obama’s order deferring deportation of 5 million people who’ve long been valuable members of American society.

More importantly — and this is something everyone needs to start accounting for — according to two different OLC memos, one used to authorize Iran-Contra, the other used to authorize Stellar Wind, the president doesn’t even have to make the actual implementation of his EOs public.

An executive order is only the expression of the President’s exercise of his inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive’s Article II authority. Further, there is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: Legal Authority for Recent Covert Arms Transfers to Iran (Dec. 17, 1986). In doing so, he need not issue a new executive order, rescind the previous order, or even make his waiver or suspension of the order publicly known. Thus, here, the October 4, 2001 Authorization, even if in tension with Executive Order 12,333, only represents a one-time modification or waiver of the executive order, rather than a “violation” that is in some way illegal.

While Jack Goldsmith’s May 6, 2004 Stellar Wind memo supplanted the Yoo memo in which he made this argument, there has been no public repudiation of this logic or the underlying Iran-Contra memo, not by Constitutional scholar Barack Obama, not by Congress.

In other words, no one has invented any kind of requirement that the president let the public or even Congress know what rules he believes he is bound by.  Indeed, it’s absurd to think Obama would have institutionalized something like that, given that (according to CIA General Counsel Caroline Krass) his administration has started hiding its self-authorizations in places besides OLC so we won’t know where to look for them.

Which means a man who used disinformation to get elected has no obligation to tell us what rules he considers himself bound by.

Three shell games that already exist under which to conduct torture

Similarly, the NDAA prohibition on torture is less ironclad than often claimed. That amendment didn’t prohibit torture. Rather, it restricted national security interrogators to the techniques in the Army Field Manual.

The amendment explicitly excluded law enforcement personnel from this restriction. As John Brennan said when he was asked about this way back in 2013, the FBI has its own processes and procedures, many of which remain obscure, others of which include clear loopholes. Importantly, the FBI increasingly operates — as the DEA has long done — overseas, where any problematic processes and procedures can easily be hidden.

In addition, as Jeff Kaye pointed out at the time, the AFM includes a section called Appendix M, which permits the use of a technique called Separation. The UN Committee Against Torture found Appendix M problematic, because it induced psychosis, during the UN review of US practices back in 2014.

But there’s another problem with the AFM. In 2006, Steven Bradbury wrote an OLC memo that basically authorized Appendix M largely divorced from the actual details of it. As I read it, that memo may be used for authorization of techniques used in Appendix M even if they’re not enumerated in the memo, meaning Trump can put anything in Appendix M and claim to have OLC buy-off. In fact, Bradbury incorporated within that memo yearly updates to the Appendix. It basically created a drawer, which might or might not be classified, into which DOD could throw whatever it wants to do.

When Congress passed the NDAA, they required the Appendix M to be reviewed to make sure it is humane and legal — but not until 2017. So while the intent of this amendment was explicitly to prohibit inhumane treatment, it relies on a structure of interpretations left up to the future President. The future President, as it turns out, got elected insisting that waterboarding is not torture.

Finally, the Drone Rule Book (which Trump can throw out on January 20 in any case) explicitly envisions letting our friends detain people, so long as they give us reassurances the person will be treated humanely. The Bush Administration started waterboarding people by watching while Egyptians did the waterboarding for us. It asked Bashar al-Assad (and a number of other countries we still are friends with) do far worse to people on our behalf. There has never been any appetite to eliminate the shell game of proxy detention. Indeed, Obama has used such shell games in Somalia and Kuwait, with tortured alleged in the latter case.

The CIA has been leaking wildly about its concerns about being asked to torture. But the CIA — and its enablers — didn’t do the things to make it impossible to ask them to torture when we had the chance.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Yahoo Scans Closely Followed Obama’s Cybersecurity Emergency Declaration

Reuters has a huge scoop revealing that, in spring of 2015, Yahoo was asked and agreed to perform scans for certain selectors on all the incoming email to its users.

The company complied with a classified U.S. government directive, scanning hundreds of millions of Yahoo Mail accounts at the behest of the National Security Agency or FBI, said two former employees and a third person apprised of the events.

[snip]

It is not known what information intelligence officials were looking for, only that they wanted Yahoo to search for a set of characters. That could mean a phrase in an email or an attachment, said the sources, who did not want to be identified.

The timing of this is particularly interesting. We know that it happened sometime in the weeks leading up to May 2015, because after Alex Stamos’ security team found the code enabling the scan, he quit and moved to Facebook.

According to the two former employees, Yahoo Chief Executive Marissa Mayer’s decision to obey the directive roiled some senior executives and led to the June 2015 departure of Chief Information Security Officer Alex Stamos, who now holds the top security job at Facebook Inc.

[snip]

The sources said the program was discovered by Yahoo’s security team in May 2015, within weeks of its installation. The security team initially thought hackers had broken in.

When Stamos found out that Mayer had authorized the program, he resigned as chief information security officer and told his subordinates that he had been left out of a decision that hurt users’ security, the sources said. Due to a programming flaw, he told them hackers could have accessed the stored emails.

That would date the directive to sometime around the time, on April 1, 2015, that Obama issued an Executive Order declaring cyberattacks launched by persons located outside the US a national emergency.

I, BARACK OBAMA, President of the United States of America,find that the increasing prevalence and severity of malicious cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside theUnited States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of theUnited States. I hereby declare a national emergency to deal with this threat.

On paper, this shouldn’t create any authority to expand surveillance. Except that we know FISC did permit President Bush to expand surveillance — by eliminating the wall between intelligence and criminal investigations — after he issued his September 14, 2001 9/11 emergency declaration, before Congress authorized that expansion. And we know that Jack Goldsmith focused on that same emergency declaration in his May 2004 OLC opinion reauthorizing Stellar Wind.

Indeed, just days after Obama issued that April 2015 EO, I wrote this:

Ranking House Intelligence Member Adam Schiff’s comment that Obama’s EO is “a necessary part of responding to the proliferation of dangerous and economically devastating cyber attacks facing the United States,” but that it will be “coupled with cyber legislation moving forward in both houses of Congress” only adds to my alarm (particularly given Schiff’s parallel interest in giving Obama soft cover for his ISIL AUMF while having Congress still involved).  It sets up the same structure we saw with Stellar Wind, where the President declares an Emergency and only a month or so later gets sanction for and legislative authorization for actions taken in the name of that emergency.

And we know FISC has been amenable to that formula in the past.

We don’t know that the President has just rolled out a massive new surveillance program in the name of a cybersecurity Emergency (rooted in a hack of a serially negligent subsidiary of a foreign company, Sony Pictures, and a server JP Morgan Chase forgot to update).

We just know the Executive has broadly expanded surveillance, in secret, in the past and has never repudiated its authority to do so in the future based on the invocation of an Emergency (I think it likely that pre FISA Amendments Act authorization for the electronic surveillance of weapons proliferators, even including a likely proliferator certification under Protect America Act, similarly relied on Emergency Proclamations tied to all such sanctions).

I’m worried about the Cyber Intelligence Sharing Act, the Senate version of the bill that Schiff is championing. But I’m just as worried about surveillance done by the executive prior to and not bound by such laws.

Because it has happened in the past.

I have reason to believe the use of emergency declarations to authorize surveillance extends beyond the few data points I lay out in this post. Which is why I find it very interesting that the Yahoo request lines up so neatly with Obama’s cyber declaration.

I’m also mindful of Ron Wyden’s repeated concerns about the 2003 John Yoo common commercial services opinion that may be tied to Stellar Wind but that, Wyden has always made clear, has some application for cybersecurity. DOJ has already confirmed that some agencies have relied on that opinion.

In other words, this request may not just be outrageous because it means Yahoo is scanning all of its customers incoming emails. But it may also be (or have been authorized by) some means other than FISA.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

What Price Victory?

Virtually the entire political class has now united to defeat Donald Trump, with Morning Joe today staging a Michael Hayden appearance that served largely to allow Scarborough to tell the story of Trump asking three times in a foreign policy briefing why the US couldn’t use its nukes. As Dan Drezner pointed out on Twitter, Scarborough says the event happened months ago — when the primary was still going on — but has just now staged its telling.

Beating Donald Trump is important. He’s a racist who aims to win by promising white working class people they can resume persecuting people of color again, and he is dangerously inconsistent. That said, he does want to spend lots on infrastructure and protect workers from the ravages of globalization, something often forgotten in depictions of him as entirely policy free.

But the transpartisan obsession with beating Trump has largely applauded two developments that, for liberals, for democrats, for those who believe in peace, for progressives, should be a worry.

First, the Neocon establishment has come out in enthusiastic support for Clinton, with ideologue Eliot Cohen orchestrating serial efforts (one that even includes John Yoo!!) to oppose Trump. They point to Trump’s erratic nature and more recently the theories of Putin’s influence. They do so even in the face of a report that Paul Manafort, through whom any Putin influence would be managed, is checking out.

I exchanged messages Tuesday evening with a longtime ally of Trump campaign manager Paul Manafort, whom I asked about who was calling the shots in the campaign. The response indicated that Manafort, a veteran of Republican politics brought in this spring for the transition from primaries to the general election, has lost control over his candidate.

“Manafort not challenging (Trump) anymore,” Manafort’s ally wrote. “Mailing it in. Staff suicidal.”

I’m getting whiplash following the Manchurian Trump stories. Maybe the ones suggesting Bill Clinton was behind the Trump run are the true ones after all.

And even while the focus has been on Russia’s alleged influence with Trump, there has been no focus on Hillary’s unquestioning support of Saudi Arabia (the country that had ties to 9/11) and Israel. Or on Hillary’s equally troubling policy proposals, such as starting a No Fly Zone over Russian planes.  As Will Bunch noted in a great column, Democrats have become the party that shuns people who chant No More War.

The delegates didn’t hear from an Andrew Bacevich or the equivalent of James Madison, but they did get Panetta, who — as noted in this excellent analysis — has supported expanded war powers for the White House, failed to push for real accountability on Bush-era torture, and once suggested that “a 30-year war” will be needed against terrorism. Was it really rude for some of the DNC delegates to chant “no more war!” during Panetta’s speech? Or were some citizens desperately trying to be heard with a different point of view, in a nation so eager to squelch any public debate?

It should be a scandal that the United States drops bombs from flying death robots or our obscenely expensive military jets over countries like Libya, swaths of Africa, or Syria based only on a 15-year-old congressional resolution passed after an attack carried out mostly by Saudi Arabians loyal to a terrorist group that barely exists in 2016. But we’re afraid of any frank discussion of that, or the recent admission by the Obama administration that U.S. military actions in nations with which we’re not technically at war have killed 116 innocent civilians. That’s a number that experts find ridiculously low, by the way, and doesn’t as include as many as 85 Syrian civilians who were killed in late July by a U.S. airstrike — a story that was all but ignored in the media. Even if you strongly believe that such collateral damage is necessary to defeat international terrorism, chanting “USA! USA!” to support militarism is both jingoistic and crudely callous toward the dead.

Not only has Hillary gotten the support of the people who brought us into Iraq based on a lie (she told her own little stretchers to get us into Libya), but we’re now drowning out any voice for peace.

Then there’s the parade of heinous billionaires Hillary has rolled out, with Mark Cuban, Mike Bloomberg, and now Meg Whitman. NYT’s coverage of Whitman’s announcement emphasizes that Hillary has been courting Republican billionaires since before she finalized the nomination and that Hillary’s pick of the pro-TPP pro-Wall Street Tim Kaine is what sealed the deal for Whitman.

Whitman, who said she would remain a Republican, brings with her a considerable network of contributors, some of whom she said were open to giving to Mrs. Clinton. She said she was willing to campaign for Mrs. Clinton, said she would do her best to gather checks for her campaign and indicated she would personally give to both Mrs. Clinton and her affiliated “super PACs.” An aide to Ms. Whitman said she would personally give at least an amount in the “mid-six figures” to the Clinton effort.

While Democrats openly appealed at their convention last week to Republicans uneasy with Mr. Trump, Mrs. Clinton and her top supporters have been making a similar cross-party pitch in private since before the Democratic nomination fight even came to its conclusion.

[snip]

She said she had told Mrs. Clinton that she wanted to see the two parties’ conventions and assess the running mates that each nominee chose before making her decision. When Mrs. Clinton selected Senator Tim Kaine of Virginia, a consensus-oriented figure, “that was a positive for me,” Ms. Whitman said.

Whitman’s nod to Kaine is of particular concern to me, as Democrats downplayed his anti-choice and pro-business policies, at least in public, until after the convention. Now, if anything happens to Hillary (who has some dangerously unhinged enemies), we’ll basically have a moderate Republican running the country.

It’s not just that Hillary has secretly been courting oligarchs since before she cemented the nomination. It’s that her post-convention politicking has focused on it, as if the approval of oligarchs is what it will take to win in midwest swing states.

The guy who will likely become Majority Leader is even more aggressively pursuing typical Republican voters (though this view — admittedly filtered through the potentially inaccurate National Review — has some huge logical contradictions, not to mention an odd idea of what it would take for Democrats to continue to win Illinois).

“No guarantees, there never are, but the odds are more like than not that we will take back the Senate,” Sen. Chuck Schumer said at a forum sponsored by the Washington Post Thursday afternoon. Schumer will be the next majority or minority leader of the Senate Democrats, depending upon how November unfolds. He suggested that the electorate’s sense of economic gloom was actually working to his party’s advantage: “The electorate is moving in a more Democratic direction. When middle class incomes decline, people tend to move in a more progressive direction.”

Schumer’s optimism is driven more by national demographics than by the specific traits of his candidates. He contends that Millennials, or voters aged 18 to 35, will be the largest age group voting in this year’s electorate, even if they don’t turn out in massive numbers.

“The number one factor in whether we retake the Senate is whether Hillary Clinton does well, and I think she’s going to do really well,” Schumer says of his former fellow New York senator. He notes that Senate Majority Leader Mitch McConnell urged Senate Republicans in difficult races to localize their elections, rather than get too tied to Trump’s positions and comments and scoffs, “Sorry, Mitch, this is a national election if there ever was one.”

At least publicly, Schumer has no worries about his party’s dwindling fortunes among working-class white voters. “For every blue-collar Democrat we lose in western Pennsylvania, we will pick up two moderate Republicans in the suburbs in Philadelphia, and you can repeat that in Ohio and Illinois and Wisconsin.”

Democrats, it appears, want to become the party of the Republican soccer mom, which may work well with the bellicose warmongering, but which seems to view economic malaise as an opportunity rather than a problem.

So yeah, by all means, let’s beat the orange crazy man.

But let’s also be cognizant of the more politically palatable craziness that gets embraced in the process.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

On The Passing of David Margolis, the DOJ Institution

david-margolis-250David Margolis was a living legend and giant at the Department of Justice. Now he has passed. Just posted is the following from DOJ:

Statements From Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates on the Passing of Associate Deputy Attorney General David Margolis

Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates released the following statements today on the passing of Associate Deputy Attorney General David Margolis, senior-most career employee at the Department of Justice.

Statement by Attorney General Lynch:

“David Margolis was a dedicated law enforcement officer and a consummate public servant who served the Department of Justice – and the American people – with unmatched devotion, remarkable skill and evident pride for more than half a century. From his earliest days as a hard-charging young prosecutor with a singular sense of style to his long tenure as one of the department’s senior leaders, David took on our nation’s most pressing issues and navigated our government’s most complex challenges. To generations of Justice Department employees, he was a respected colleague, a trusted advisor and most importantly, a beloved friend. We are heartbroken at his loss and he will be deeply missed. My thoughts and prayers are with David’s family, his friends and all who loved him.”

Statement by Deputy Attorney General Yates:

“David Margolis was the personification of all that is good about the Department of Justice. His dedication to our mission knew no bounds, and his judgment, wisdom and tenacity made him the “go-to” guy for department leaders for over 50 years. David was a good and loyal friend to all of us, and his loss leaves a gaping hole in the department and in our hearts.”

I am sure Mr. Margolis was a kind, personable and decent chap to those who knew and worked with him. I can be sure because there have been many voices I know who have related exactly that. He was undoubtedly a good family man and pillar of his community. None of that is hard to believe, indeed, it is easy to believe.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

This is no small matter. When DOJ Inspectors General go to Congress to decry the fact that there is an internal protection racket within the Department of Justice shielding even the worst wrongs by Department attorneys, as IG Glen Fine did:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation raising questions about his conduct or the conduct of his senior staff to OPR, an entity reporting to and supervised by the Attorney General and Deputy Attorney General and lacking the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

Said fact and heinous lack of accountability for Justice Department attorneys, not just in Washington, but across the country and territories, is largely because of, and jealously ingrained by, David Margolis. What Glen Fine was testifying about is the fact there is no independent regulation and accountability for DOJ attorneys.

They are generally excluded from the Department IG purview of authority, and it is rare, if ever, courts or state bar authorities will formally review DOJ attorneys without going throughout the filter of the OPR – the Office of Professional Responsibility – within the Department. A protection racket designed and jealously guarded for decades by David Margolis. Even when cases were found egregious enough to be referred out of OPR, they went to…..David Margolis.

In fact, attuned people literally called the OPR the “Roach Motel”:

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

If you want a solid history of OPR, and the malfeasance it and Margolis have cravenly protected going back well over a decade, please go read “The Roach Motel”, a 2009 article in no less an authority than the American Bar Association Journal. It is a stunning and damning report. It is hard to describe just how much this one man, David Margolis, has frustrated public transparency and accountability into the Justice Department that supposedly works for the citizens of the United States. It is astounding really.

As I wrote back in 2010:

But just as there is an inherent conflict in the DOJ’s use of the fiction of the OPR to police itself, so too does David Margolis have issues giving the distinct appearance of impropriety. Who and what is David Margolis? A definitive look at the man was made by the National Law Journal (subscription required):

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
….
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car.

“The Cleaner” Mr. Margolis considered himself, while fastidiously sanitizing gross malfeasance and misconduct by DOJ attorneys, all the while denying the American public the disinfectant of sunshine and transparency they deserve from their public servants (good discussion by Marcy, also from 2010).

Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opinedcrushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

So, what did David Margolis do in response to the heinous legal banality of evil John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

So, less than 24 hours in to the passing of The Cleaner, is it too early to engage in this criticism? Clearly other career officials at the DOJ think discussing the pernicious effects of Margolis on accountability and transparency are out of bounds.

I wonder what the late Senator Ted Stevens would say in response to the “too soon” mandate of Steven Bressler? Because thanks to the efforts of The Cleaner Margolis, Stevens died without the public knowing what an unethical and craven, if not downright criminal, witch hunt attorneys in the Department of Justice ran on him. Even after Stevens was long gone from office and dead, there was Margolis “cleaning” it all up to protect his precious Justice Department when even the internal OPR found gross misconduct:

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

Having laid out the above bill of particulars as to David Margolis, I’d like to return to where we started. As I said in the intro, “I am sure Mr. Margolis was a kind, personable and decent chap”. That was not cheap rhetoric, from all I can discern, both from reading accounts and talking to people who knew Mr. Margolis well, he was exactly that. Ellen Nakashima did a fantastic review of Margolis in the Washington Post last year. And, let’s be honest, the man she described is a guy you would love to know, work with and be around. I know I would. David Margolis was a man dedicated. And an incredibly significant man, even if few in the public understood it.

Say what you will, but Mr. Margolis was truly a giant. While I have no issue delineating what appear to be quite pernicious effects of David Margolis’ gargantuan footprint on the lack of accountability of the Department of Justice to the American citizenry, I have some real abiding respect for what, and who, he was as a man. Seriously, read the Nakashima article and tell me David Margolis is not a man you would love to kill some serious beers with by a peaceful lake somewhere.

But David Margolis, both the good and the bad, is gone now. Where will his legacy live? One of our very longtime friends here at Emptywheel, Avattoir, eruditely said just yesterday:

Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

Those words were literally the first I thought of yesterday when I received the phone call David Margolis had passed. They are true and important words that I, and all, need to take heed of more frequently.

David Margolis, it turns out from all appearances and reports, was a complex man. Clearly great, and clearly detrimental, edges to him. So what will his legacy be at the Department of Justice? Will the closing of the Margolis era, and it was truly that, finally bring the institution of the Department into a modern and appropriate light of transparency, accountability and sunshine?

Or will the dirty deeds of David Margolis’ historical ratification and concealment of pervasive and gross misconduct by Department of Justice attorneys become permanently enshrined as a living legacy to the man?

We shall see.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

In 2010, DOJ Was Stalling Gang of Four Member Silvestre Reyes Over (Probably) Common Commercial Services Memo

As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its FOIA lawsuit.

According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about a memo — which is probably the same one — even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about a May 30, 2003 memo. On October 5, Ron Weich wrote Reyes,

We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.

In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”

That seems like a problem to me.

It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.

Update: On reflection, I may have overstated how sure we can be that this May 30 opinion is the same opinion. I’ve adjusted the post accordingly.

 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

DOJ Confirms One or More Agencies Acted Consistent with John Yoo’s Crummy Opinion

There’s a whiff of panic in DOJ’s response to ACLU’s latest brief in the common commercial services OLC memo, which was submitted last Thursday. They really don’t want to release this memo.

As you recall, this is a memo Ron Wyden has been hinting about forever, stating that it interprets the law other than most people understand it to be. After I wrote about it a bunch of times and pointed out it was apparently closely related to cybersecurity, ACLU finally showed some interest and FOIAed, then sued, for it. In March, DOJ made some silly (but typical) claims about it, including that ACLU had already tried but failed to get the memo as part of their suit for Stellar Wind documents (which got combined with EPIC’s suit for electronic surveillance documents). In response, Ron Wyden wrote a letter to Attorney General Loretta Lynch, noting a lie DOJ made in DOJ’s filings in the case, followed by an amicus brief asking the judge in the case to read the secret appendix to the letter he wrote to Lynch. In it, Wyden complained that DOJ wouldn’t let him read his secret declaration submitted in the case (making it clear they’re being kept secret for strategic reasons more than sources and methods), but asking that the court read his own appendix without saying what was in it.

Which brings us to last week’s response.

DOJ is relying on an opinion the 2nd circuit released last year in ACLU’s Awlaki drone memo case that found that if a significant delay passed between the time an opinion was issued and executive branch officials spoke publicly about it — as passed between the time someone wrote a memo for President Bush’s “close legal advisor” in 2002 about drone killings (potentially of American citizens) and the time Executive branch officials stopped hiding the fact they were planning on drone-killing an American citizen in 2010, then the government can still hide the memo.(I guess we’re not allowed to learn that Kamal Derwish was intentionally, not incidentally, drone-killed in 2002?)

This is, in my understanding, narrower protection for documents withheld under the b5 deliberative privilege exemption than exists in the DC Circuit, especially given that the 2nd circuit forced the government to turn over the Awlaki memos because they had been acknowledged.

In other words, they’re trying to use that 2nd circuit opinion to avoid releasing this memo.

To do that they’re making two key arguments that, in their effort to keep the memo secret, end up revealing a fair amount they’re trying to keep secret. First, they’re arguing (as they did earlier) that the ACLU has already had a shot at getting this memo (in an earlier lawsuit for memos relating to Stellar Wind) and lost.

There’s just one problem with that. As I noted earlier, the ACLU’s suit got joined with EPIC’s, but they asked for different things. ACLU asked for Stellar Wind documents, whereas EPIC asked more broadly for electronic surveillance ones. So when the ACLU argued for it, they were assuming it was Stellar Wind, not something that now appears to (also) relate to cybersecurity.

Indeed, the government suggests the ACLU shouldn’t assume this is a “Terrorist Surveillance Program” document.

7 Plaintiffs conclude that the OLC memorandum at issue here must relate to the Terrorist Surveillance Program and the reauthorization of that program because the attorney who authored the memorandum also authored memoranda on the Terrorist Surveillance Program. Pls.’ Opp. at 10. The fact that two OLC memoranda share an author of course establishes nothing about the documents’ contents, nature, purpose, or effect.

Suggesting (though not stating) the memo is not about TSP is not the same as saying it is not about Stellar Wind or the larger dragnets Bush had going on. But it should mean ACLU gets another shot at it, since they were looking only for SW documents the last time.

Which is interesting given the way DOJ argues, much more extensively, that this memo does not amount to working law. It starts by suggesting Wyden’s filing arguing a “key assertion” in the government’s briefs is wrong.

3 Senator Wyden asks the Court to review a classified attachment to a letter he sent Attorney General Loretta Lynch in support of his claim that a “key assertion” in the Government’s motion papers is “inaccurate.” Amicus Br. at 4. The Government will make the classified attachment available for the Court’s review ex parte and in camera. For the reasons explained in this memorandum, however, the Senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the “working law” doctrine.

In doing so, it reveals (what we already expected but which Wyden, but apparently not DOJ, was discreet enough not to say publicly) that the government did whatever this John Yoo memo said government could do.

But, it argues (relying on both the DC and 2nd circuit opinions on this) that just because the government did the same thing a memo said would be legal (such as, say, drone-killing a US person with no due process), it doesn’t mean they relied on the memo’s advice when they took that action.

The mere fact that an agency “relies” on an OLC legal advice memorandum, by acting in a manner that is consistent with the advice, Pls.’ Opp. at 11, does not make it “working law.” OLC memoranda fundamentally lack the essential ingredient of “working law”: they do not establish agency policy. See New York Times, 806 F.3d at 687; Brennan Center, 697 F.3d at 203; EFF, 739 F.3d at 10. It is the agency, and not OLC (or any other legal adviser), that has the authority to establish agency policy. If OLC advises that a contemplated policy action is lawful, and the agency considers the opinion and elects to take the action, that does not mean that the advice becomes the policy of that agency. It remains legal advice. 5

5 Nor could the fact that any agency elects to engage in conduct consistent with what an OLC opinion has advised is lawful possibly constitute adoption of that legal advice, because taking such action does not show the requisite express adoption of both the reasoning and conclusion of OLC’s legal advice. See Brennan Center, 697 F.3d at 206; Wood, 432 F.3d at 84; La Raza, 411 F.3d at 358.

Effectively, DOJ is saying that John Yoo wrote another stupid memo just weeks before he left, the government took the action described in the stupid memo, but from that the courts should not assume that the government took Yoo’s advice, this time.

One reason they’re suggesting this isn’t TSP (which is not the same as saying it’s not Stellar Wind) is because it would mean the government did not (in 2005, when Bush admitted to a subset of things called TSP) confirm this action in the same way Obama officials danced around hailing that they had killed Anwar al-Awlaki, which led to us getting copies of the memos used to justify killing him.

In short, the government followed Yoo’s advice, just without admitting they were following his shitty logic again.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Domestic Collection and Stellar Wind

I’m in the middle of comparing John Yoo’s May 17, 2002 letter to Colleen Kollar-Kotelly (which is largely the November 2, 2001 justification he wrote for Stellar Wind) with Jack Goldsmith’s May 6, 2004 memo on Stellar Wind, which reined in some aspects of Stellar Wind. And I realized something about the authorization process.

On page 17 of his memo, Goldsmith describes the previous opinions issued by OLC. The discussion is largely redacted, but it does describe say the October 4, 2001 memo “evaluated the legality of a hypothetical electronic surveillance program,” whereas the November 2, 2001 memo “examined the authorities granted by the President in the November 2, 2001 Authorization of STELLAR WIND and concluded that they were lawful.”

Already, that’s an interesting assertion given that the Yoo letter doesn’t do that entirely. First, at least in the letter to Kollar-Kotelly, Yoo also treated the program as hypothetical.

Electronic surveillance techniques would be part of this effort. The President would order warrantless surveillance in order to gather intelligence that would be used to prevent and deter future attacks on the United States. Given that the September 11 attacks were launched and carried out from within the United States itself, an effective surveillance program might include individuals and communications within the continental United States. This would be novel in two respects. Without access to any non-public sources, it is our understanding that generally the National Security Agency (NSA) only conducts electronic surveillance outside the United States that do not involve United States persons. Usually, surveillance of communications by United States persons within the unites states is conducted by the FBI pursuant to a warrant obtained under the Foreign Intelligence Surveillance Act (“FISA”). Second, interception could include electronic messages carried through the internet, which again could include communications within the United States involving United States persons. Currently, it is our understanding that neither the NSA nor law enforcement conducts broad monitoring of electronic communications in this matter within the United States, without specific authorization under FISA.

[snip]

Thus, for example, all communications between United States persons, whether in the United States or not, and individuals in [redacted–likely Afghanistan] might be intercepted. The President might direct the NSA to intercept communications between suspected terrorists, even if one of the parties is a United States person and the communication takes place between the United States and abroad. The non-content portion of electronic mail communications also might be intercepted, even if one of parties is within the United States, or one or both of the parties are non-citizen U.S. persons (i.e., a permanent resident alien). Such operations would expand the NSA’s functions beyond the monitoring only of international communications of non-U.S. persons. [my emphasis]

Importantly, these hypothetical descriptions come from the section of Yoo’s letter before it appears to begin tracking his earlier memo closely. So it’s unclear whether this description of Stellar Wind matches the one in the November 2 memo. It’s certainly possible that Yoo gave an incomplete version of what he had in the earlier memo or even pulled in (hypothetical) language from the October 4 memo. It’s possible, too, that language on domestic content collection reflected a retroactive review Yoo did of the first authorization. (An extended discussion of how Yoo’s early memos track the Authorizations — including discussion of another hypothetical memo Yoo wrote on September 17 — starts at PDF 361.)

Of particular interest, this hypothetical description includes the possibility of intercepting entirely domestic Internet communications (see emphasized language). We know — from the unredacted NSA Stellar Wind IG Report and even from the redacted Joint IG Report — that was something included in the first presidential Authorization, but not the subsequent ones.

The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for domestic collection.

We also know NSA did collect some domestic collection — on about 3,000 selectors, possibly triggered to non-US persons within the US — at least until Stellar Wind got transitioned to FISA in 2009.

This is a minor, but potentially important one. Yoo was writing hypothetical authorizations for stuff the NSA later pretended not to be authorized to do, but was doing. Those earlier hypothetical authorizations didn’t go away. And therefore, no matter what the authorizations said, there’d still be that authorization sitting there.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.