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 has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

1 reply
  1. bloopie2 says:

    “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’s one of the problems arising from the separation of Executive and Legislative powers. The Executive doesn’t work for the Legislature, and can say “Screw you, go away” to such a request. If a private service provider wrote back to a private customer like that, the provider could easily be fired. (Or if a husband answered his wife … well, you get the point.) Of course, theoretically the Executive Branch works for “the people” and are supposed to be responsive to “the people acting through their legislators”, but how often does that happen? And with the IC community, the legislature refuses to use its one real weapon, the power of the purse, to obtain results. But, how about this: a Senator being able to put a hold on 10% of DOJ appropriations on a month-by-month basis pending receipt of answers to his questions. Yeah, that would work out well.

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