What’s Missing from the EFF Document Dump: Whitehouse’s Declassification Requests

I’m still plugging away on the EFF Document Dump. But before I delve into the next chunk of emails, I want to note something that hasn’t, thus far, shown up in the document dump (and almost certainly should have been included in the communications between Congress and OLC): Two separate requests (or one extended one) on the part of Sheldon Whitehouse to declassify some of the underlying legal authorities for Bush’s illegal surveillance program.

On December 7, 2007, Whitehouse revealed three paraphrases of OLC opinions that Bush had relied on to authorize his surveillance program.

  • An executive order cannot limit a President. 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.
  • The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
  • The Department of Justice is bound by the President’s legal determinations.

Whitehouse made it clear–between the time SSCI approved its version of FAA on October 26, 2007 and the time the full Senate approved it on February 12, 2008–that these three OLC opinions authorized at least one earlier incarnation of Bush’s surveillance program (though it’s not clear whether they authorized the PAA or the totally illegal programs).

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified.

These are the opinions, then, that the SSCI got to review as part of the negotiations over the PAA and FAA.

Then, on April 30, 2008, Whitehouse revealed he was still trying to get language from one OLC opinion similarly declassified, this one on exclusivity.

I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

This effort took place before the ultimate compromise bill was introduced on June 19, 2008 (it passed the Senate on July 9, 2008).

In other words, Whitehouse’s efforts–which surely include the OLC (though the OLC would almost certainly not have had final declassification authority)–were part of DOJ discussions with Congress about passing FAA. But they don’t show up in the OLC documents, or (as far as I have seen) in the EFF documents more generally.

Though there may be reasonable explanations (I’m going to do some follow-up on this point), it does seem a curious omission. Not least, because these four opinions (and therefore, presumably the discussions about declassifying some summary of them) are really keys to understanding much of the discussion in the emails. They explain both the discussions about 12333 and “2.5” authority, specifically regarding whether the government could wiretap Americans overseas. As well as some of the discussion about the debate over the exclusivity provision.

22 replies
  1. WilliamOckham says:

    Check out pg 22-24 of OLC part 2. It’s an email exchange involving Republican staffers from SSCI and Bradbury. Apparently Bond was trying to get a meeting with the AG to head off a request from SSCI for:

    1) the President’s authorizations of the TSP (as the program evolved);
    2) the DOJ legal opinions;
    3) the classified legal pleadings of the government in the various proceedings.

    Bradbury says:

    I understood from Vice Chainnan Bond’s statement at the last hearing that he did not support the Chairman’s request that we disclose to the Committee item (2), the DOJ legal opinions. It’s one thing to brief the Committee on our legal analysis supporting particular intelligence activities, which we have done; it’s another thing entirely to disclose actual deliberative legal advice, in which the Executive Branch has significant and. legitimate confidentiality interests. I believe I
    explained that at the last hearing, and I was convinced that the Vice Chairman recognized and respected that position. Please confirm, if you’re able, and I’ll discuss these matters with the AG. Thanks. Steve

    This means that as of May 2007, they hadn’t even shown the opinions to SSCI.

    • emptywheel says:

      Thanks–that’s something I was looking for. I remembered that this request had to have come late enough to fit into the EFF FOIA.

      After some preliminary checking on this, the original request may have been classified, which would mean it would not necessarily show up in the document dump.

      Though I’d think at least the request would-completely redacted emails…

  2. MadDog says:

    Perhaps this DOJ pleading regarding “EFF v. ODNI and DOJ” was already identified here, but I don’t remember it being so.

    From EFF, Government’s Opening Brief on the Merits in the Ninth Circuit (44 page PDF).

    And from pages 8-9, comes this construct of squeaky “logic”:

    …In the aftermath of the terrorist attacks on September 11, 2001, the Executive Branch determined that the legal framework for foreign intelligence surveillance created in 1978 needed to be updated…


    …In April 2007, the Executive Branch submitted draft reform legislation to Congress that was intended to address these concerns…

    So, to understand the fairy tale story the DOJ is pushing these days, the Bush/Cheney regime realized FISA needed to be updated after September 11, 2001, but for some unknown reason it took them almost 6 years to get around to drafting any FISA reform legislation.

    Shorter Bush/Cheney regime: “Well, we were real busy breaking the law and we didn’t have time to do anything else.”

        • bmaz says:

          No, it is a one page deal that simply says it is dismissed because the court no longer has jurisdiction. That is literally it (and exactly what I expected).

          • MadDog says:

            And that expected result of dismissal makes it all the more curious as to why the DOJ filed it in the first place.

            Late edit: I found the dismissal ruling here (5 page PDF)

            Psychological warfare aimed at Judge Walker? Tainting the Appeals pool at the 9th? All of the above?

            • bmaz says:

              I think they filed it that way to get it in front of Walker without filing it with Walker, because Walker has indicated he would be inclined to make further classified filings available to Eisenberg.

              It was too cute by a half kabuki bullshit.

    • bmaz says:

      Um, no. Some Congressional leader specifically offered to update FISA and other laws, and Dick Cheney specifically told them to get lost that “we have all the authority we need”.

    • MadDog says:

      A couple other points regarding this filing (44 page PDF):

      The DOJ claims to now have released “all of the communications between the agencies and the telecommunications companies (with redactions for information protected by exemptions other than Exemption 5 itself)” (page 18).

      But in reviewing the NSD Vaughn Index (18 page PDF), the list of Telco communications on pages 15 through 17, lists far more Telco communications than I think we’ve managed to identify thusfar.

      So, what are we missing or where are they all in the FOIA dump?

      And lastly, note that Beth S. Brinkmann, Acting Assistant Attorney General is the “lead” on this filing. The DOJ rolls out the big guns once again.

      • MadDog says:

        And another point to ponder – from footnote 1 on page 5 of the DOJ appeals brief (44 page PDF), there’s this list of the 5 DOJ components that EFF FOIA’d:

        1 The five DOJ components were the Office of the Attorney General (OAG), the Office of Legal Policy (OLP), the Office of Legislative Affairs (OLA), the Office of Legal Counsel (OLC), and the National Security Division (NSD).

        (My Bold)

        So, where are the FOIA responses to those bolded DOJ components? And where are the Vaughn Indexes to those bolded DOJ components?

  3. MadDog says:

    OT – Via the WSJ:

    Guantanamo Detainee Seeks Details On ‘Black Sites’ Detention

    Ahmed Ghailani, the first detainee from Guantanamo Bay, Cuba, to face prosecution in the U.S., asked a federal judge on Monday to order prosecutors to turn over material related to his detention and interrogation at Central Intelligence Agency “black sites” and a prison at the U.S. naval base in Cuba.

    In a redacted motion filed Monday, Ghailani’s lawyers asked U.S. District Judge Lewis A. Kaplan to order prosecutors to hand over any material related to the U.S. government’s decision to hold and interrogate Ghailani at CIA “black sites” and at Guantanamo Bay.

    His lawyers also asked for any material related to Ghailani’s treatment while detained and interrogated at those locations.

    However, the bulk of their motion and supporting memorandum of law wasn’t filed publicly.

    The judge issued an order Monday indicating oral argument on the motion will be heard Dec. 9…

    • earlofhuntingdon says:

      Blackwater/Xe is the purrrrfect solution for the illiberal Mr. Obama. He wants to claim he’s not mimicking Johnson and Nixon, who put their re-election chances ahead of getting us out of no-win wars. Instead of plopping into Afghanistan 40,000 more soldiers we don’t have, he can plop 20,000 into that hell hole (at a cost of X), then hire 20,000 mercs (at a cost of XXX). He will brag responsibly and seriously about having split the baby, and kept the real cost in people and resources off budget. The cynicism is considerable, even by the standards of Chicago politics.

      Doing that would be as likely to make him a one-term president as ignoring health care, jobs and education, and far more likely to make him a one-termer than reducing our involvement in foreign wars. If he wants to continue to surround Iran with land forces by claiming they’re the great Satan, while ignoring who has their hands on Pakistan’s nukes, he’ll have to come up with a better argument than Johnson or Nixon for keeping us in that no-win war in Vietnam.

      • MadDog says:

        From that Scahill piece:

        …In addition to planning drone strikes and operations against suspected Al Qaeda and Taliban forces in Pakistan for both JSOC and the CIA, the Blackwater team in Karachi also helps plan missions for JSOC inside Uzbekistan against the Islamic Movement of Uzbekistan, according to the military intelligence source. Blackwater does not actually carry out the operations, he said, which are executed on the ground by JSOC forces. “That piqued my curiosity and really worries me because I don’t know if you noticed but I was never told we are at war with Uzbekistan,” he said. “So, did I miss something, did Rumsfeld come back into power?”

        JSOC commandos in Uzbekistan? Just visiting I’m sure. /s

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