Brett Kavanaugh Was In the Loop on (Broader) Precursor to John Yoo’s Stellar Wind Memos

Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails that Orrin Hatch staffer Manny Miranda stole from Democrats, including Leahy himself, in 2001 to 2003 during the period Kavanaugh worked at the White House, including on judicial nominations.

In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind, Bush’s illegal wiretap program. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.

But Leahy persisted, asking specifically about this document (see page 13; significantly, Steven Bradbury left the document off a FOIA Vaughn Index about documents pertaining to the “TSP”).

From the context of Leahy’s questions, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents. Leahy further made it clear that he couldn’t release the underlying documents making this clear because Chuck Grassley had deemed them Committee Confidential.

That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.

I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).

If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.

Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.

Update: This story from Charlie Savage makes it clear that Kavanaugh was emailing John Yoo about the precursor to the memos authorizing Stellar Wind.

[I]n September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.

Update: The email reads:

Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?

57 replies
  1. J R in WV says:

    Well, we DO know that there was a serious reason the 100,000 pages of Bush White House documents Kavanaugh wrote were never released to the public, right? What on earth could be that reason…?

  2. Trip says:

    @Marcy have you seen this?

    I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.

    The NYT has allowed an anonymous editorial of how dangerous Trump is and they are calling themselves heroes for directing policy. This means that we have someone else running the country (not Trump). People are running the country who were never elected. How dare they say what a good job they are doing, when they aren’t doing the right thing by going public?

    They don’t want to disrupt the conservative agenda including pushing Kavanaugh through, so they leave intact an inept and dangerous president. This is outrageous. And I thought I didn’t have the capacity to be outraged further. Where are the hearings on this? Why aren’t these people being forced to come forward if the president is insane?

    • earlofhuntingdon says:

      When Woodrow Wilson’s wife helped hide Wilson’s strokes, the debilitated president was allowed to remain in office unchallenged, even though unable to fulfill his responsibilities.  Later historians considered it a scandal.

      Donald Trump’s closest advisers appear to admit that he is grossly incompetent to serve as president.  They do his job for him.  They prevent him from acting on the many whims that strike him during any day.  They hide things from him as if he were the mad woman in the attic. Early nineteenth century Britain removed George III from power owing to his obvious unfitness to govern.

      They and the “serious” press are constantly monitoring whether “an adult” is in the room with the putative president, to make sure he is monitored, controlled, restricted from acting in ways that would damage the presidency and America.

      They are worried not about a dangerously incompetent and unpredictable president, but about whether others in his presence – with no constitutional role or authority – restrain him from acting.  They are worried whether “his” agenda will be restrained should they do their constitutional duty and remove Donald Trump from office.  They actively protect a damaged and corrupt president from criminal investigation to promote their own agenda.

      Do we need better evidence that American democratic government is seriously broken?  Do we need more evidence that the Republican Party is daily aiding and abetting an unconstitutional government?  Do we need more evidence that the Republican Party is preventing the government even from addressing how broken it is – purely for partisan advantage?

      • Trip says:

        Exactly @earl. This is fucking outrageous and astonishing. Especially since the media is admitting that they heard this all along, but played the story as middle of the road.

        I have to wonder, though, if the Republicans think it’s now safe to do away with Trump, since they are shoving Kavanaugh through (without, of course, an honest airing of who he really is). Are they going to pretend to be the heroes who oust him, like this anonymous source pretends they were heroes saving the country? I’m so disgusted, I actually got an instant headache (from this and the heat, I guess).

        • Doctor My Eyes says:

          Who are these sensible, honest, conservatives defenders of American ideals?  I can’t think of a single person close to the WH who fits the bill.

          It’s pure propaganda, this one for the benefit of the good little liberals. We need to remind ourselves daily that Trump is not the problem–wide-ranging Russian manipulation is.  The saddest thing about it is how many good-hearted friends I have who will think this is the big news of the day.  I see the message as, “Don’t worry so much, the rot is contained.”  This is the alternative to the more alarmist message I embrace: “Our political system teeters on the verge of complete collapse from endemic corruption.”

          • Trip says:

            There is absolutely nothing sensible about keeping a leader in situ who has gone off the rails and these insiders consider him dangerous. And like I said before, they are doing a truly shitty job of containment, if any of this is true.

            The real story is their intent on putting a dirty judge on the supreme court. Because they know that what they are doing is not good for the country, the people are not supportive and that otherwise they would never have such immense power again. The fix is in.

    • harpie says:

      To me, Leah Mcelrath has a good take:

       This is a finely crafted piece of propaganda – in content, placement, and timing. // Be VERY wary of taking any of this at face value. >THREAD< / Published two months before midterms, it serves the GOP’s electoral efforts: // 1. It feeds Trump’s paranoid, deep state narrative that can by used by him and Fox, InfoWars, etc., to rally his base. // and // 2. It offers false reassurances that can serve to de-motivate Democratic voters. / In addition, it feeds into the PR effort I’ve previously discussed to re-brand Trump administration officials and the GOP as a whole as separate from Trump and as misunderstood martyrs defending our republic against his more base impulses. // Click through: >>> [ […] Judging from Woodward’s book excerpts and current GOP narrative, many Republicans appear to be attempting to portray themselves as the “reasonable” ones and/or as the sole line of defense against Trump’s worst impulses. BUT THEY PUT HIM IN OFFICE. // #FAIL […] ] […] 

      • Rayne says:

        Agreed, I think the timing of this piece is highly suspect. While some of the claims might be validated when comparing Omarosa’s Unhinged and her recordings against Woodward’s Fear and his recordings, there’s a lot of weaselly wording in this piece which serves as butt-covering for people who have aided and abetted his worst acts if not acts they did on their own. Are they trying to put distance between themselves and caging of infants and children ripped from their mothers? Are they trying to excuse themselves for the trillion dollar-plus tax fucking, I mean, tax cut the average American won’t see in their paychecks?

        While the pixels were drying on the op-ed, Kavanaugh was being questioned about false statements to the Senate and the use of emails hacked from Democratic senators. Too, too convenient. Couldn’t time this redirection of attention better if I was producing a reality TV show. Wonder what these valiant moles will do when Special Counsel’s Office drops another indictment?

        • orionATL says:

          yes! this bit of newspaper smells like it had wrapped fish guts some days ago.

          i don’t think it’s the same, norvwith the same intention, but the gop trick on cbs anchor dan rather to help steal the 2004 election for the republican candidate bush came to mind.

    • earlofhuntingdon says:

      A related question is why the NYT agreed to publish this anonymous op-ed column, excoriating the president, but lauding the hard-line Republican aides who are protecting him, but imagine themselves to be protecting the rest of America from someone they admit is dangerous, infantile, and unfit to be president.

      Is the Times accounting for that op-ed as a campaign donation, because it would be hard to find a better way of unaccountably rehabilitating Donald Trump’s Republican Party.

      If, for example, it came from the pen of Wilbur Ross or Jared Kushner, we should ignore it.  If it came from John Kelly or James Mattis, we should be worried about what Trump wants to do that they are, by an orange hair, preventing him from doing.  If it came from the pens of Trump, Sanders, Miller and Bannon, as false flag propaganda, we should be more worried still about the corruptness inside the White House.

      The Times, in its effort to “publish an important perspective,” is doing its readers a disservice by denying them the author’s name.  By agreeing to hide the name, but publish the work, the Times is shielding not just the writer, but Trump and the Republican Party that has backed him to the hilt – and now wants not to be accountable for doing so.

      The insider or the committee which wrote that op-ed should stand behind his or her views – and publicly and immediately resign.  They are not part of some fictional “Resistance,” saving the country from Trump’s excesses.  They are enabling them and the Republican Party that enables him.

      • Trip says:

        It doesn’t rehabilitate anyone, although I could see where they might think so. They don’t look heroic hiding behind anonymity, while hailing themselves as saviors. (Sounds like a Trump)

        If they genuinely saw a threat from Trump and considered the 25th Amendment, yet they stood by while thousands died in Puerto Rico, and immigrant children were being traumatized, and Trump almost started a nuclear war with NK, they are just as complicit. So regardless of whatever they stopped, their competence level wasn’t so great that disasters didn’t occur. And yet, they haven’t come forward.

        I agree with comments above that it could be a planted diversion, or the Republicans getting ready to unload Trump and install Pence.

        And no one should take their eyes off of Kavanaugh, he’s a snake in the grass.

      • earlofhuntingdon says:

        From that op-ed, this is self-promotional hogwash:

        Astute observers have noted, though, that the rest of the administration is operating on another track, one where countries like Russia are called out for meddling and punished accordingly, and where allies around the world are engaged as peers rather than ridiculed as rivals….

        This isn’t the work of the so-called deep state. It’s the work of the steady state.

        If any of that is happening, the faceless aides to Donald Trump are hiding it from Americans, as well as Donald Trump, and probably from the world, too.  More likely, the description was invented to promote the GOP’s chances in the mid-term elections.

        But if those faceless aides believed their editorial, they would let Trump be Trump, and force his Cabinet to use the 25th Amendment or force a supine Congress to impeach, try, and throw him out – to fire him for cause the way he fired so many fictional apprentices.

      • Trip says:

        Maybe McGahn, to divert attention from his buddy’s hearings? He stopped Sessions from being fired and also picked judges. He was also on an extended rollout of favorable PR pieces about himself right before this.

        The Times mentioned the piece being given by an intermediary, which makes it all muddy. How did they confirm? Did they ever speak directly to the author(s)?

  3. orionATL says:

    read this. read it.

    “I Am Part of the Resistance Inside the Trump Administration

    I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.”

    nytimes, 9/5/18, nobody.

    the writing and vocabulary is that au courant irritating, clunky, self-disclosing style. this is the nytimes?

    does it not sound like the silly, goosing writing one finds in urgent demands of others to act in the endless river of political emails. or in some partisan, contrarian, op-ed headline you might read in, say, the guardian? (my favorite newspaper, by the way, but…a silly, tedious style nonetheless.)

    is this the nytimes editorial page editor james bennett at his “whatever it takes to get readers” best?

    maybe brett stephens ghosted it.

    • orionATL says:

      is the mystery op-ed in the nytimes mimicry or parody?

      if indeed written by white house staff it might be mere mimicry.

      it’s lead-in is more like a parody of robert woodward’s new tell-all book. what an imaginative way to use op-ed, either from within the nytimes or without :)

  4. Drew says:

    FWIW I was talking to a very wise person who is tuned into the subtleties of writing & rhetoric. “It sounds like a well written piece by a committee, working together to integrate several convergent perspectives with slightly different interests.” Maybe not committee: junta, conspiracy, working group, faithful remnant; but it makes sense to me that this could be more than one person, even if a single person fronts it to the Times.

    • earlofhuntingdon says:

      I agree, that’s what the op-ed looks like.  A very American coup.  The idiot stays in the Oval Office, but we control the horizontal, we control the veritcal…. 

      To paraphrase Benjamin Franklin in his post-Declaration of Independence warning, so long as these steady state heroes hang together, they will not hang separately.  Perhaps not.

      Theirs is a Profile in Cowardice.  Their claims are extraordinarily self-serving.  To take one example, these co-idiots have not averted a constitutional crisis, they are manipulating one – Trump’s corruption and gross incompetence – and creating another.

      But to take the claims of these “steady staters” at face value, they’re doing a shitty job.  Trump has wrecked the place and is still doing it.  That he hasn’t been allowed to start WWIII is a pretty low bar to be labeled a hero.  If they were doing their jobs, they would expose Trump sufficiently so that even a GOP Cabinet and Congress would do their duty and remove the idiot man-child from office.

      • Doctor My Eyes says:

        The view in this thread rings dead true. It may well be that the group writing this piece hopes to replace the deep state machinery that has been controlling our government (sorry, but I strongly suspect that Obama was a gift from the CIA) with a new inside group, one with a strong desire to “improve relations with Russia.” Their front man is becoming increasingly untenable.  Here’s hoping that the court of public opinion will not be sufficient for them to prevail.  May Mueller cast a very wide net.

    • Kick the darkness says:

      Yeah, given the topic its surprisingly stripped of emotive phrases, a sense of a singular voice.  Strange.  But whatever.  If whoever wrote this thinks they can maintain this as some kind of stable state they are not sensing the wind beginning to fill the sails.

      • cwradio says:

        … given the topic its surprisingly stripped of emotive phrases, a sense of a singular voice.

        Like a military officer would speak.

        Like someone used to being the Chief and keeping the country in a “steady state”.

        Like someone who is known to use phrases such as:

        “off the rails” and “shove my resignation up his ass”.

        Someone like John Kelly.

  5. Drew says:

    It seems to me that this is likely the advance work of dumping Trump after they finish with the Kavanaugh confirmation. That is primary to the Republicans, but then starting the motions to throw Trump under the bus would be a good idea for mitigating damage for the midterms. Maybe not keeping the house, but holding a close enough minority by asserting “see, good Republicans, blame Trump, we’ll get rid of him”

    All for the sake of Mike Pence and a comeback in 2020

  6. orionATL says:

    as far as i am concerned, the key matter in this post of ew’s concerns kavanaugh’s knowledge of stellar-wind-style domestic spying by our national security administration during the dick cheney/george bush administration, an abuse of law that began relatively soon after 9/11/01.

    if kavanaugh did not object noisily to this abuse of law (fisa), then on that ground alone, he has no business ever being appointed to our supreme court. were i senator leahy, i would sit on this argument and voice it repeatedly until the hearings and the votes are over.

    in regard to this not at all ancient history, i want to point out that i recently discovered (as a result of a rayne post) that our new fcc chairman, ajit pai, served as a verizon associate general counsel from 2001 until 2004 (after beginning at the doj in 1999).

    verizon is an american telecommunications corporation that allowed covert gathering of americann domestic communications:

    a question that naturally comes to mind is what greater damage to the 4th ammendnent might a combination of rabid partisans like kavanaugh and pai accomplish under the aegis of an ignorant president.

    if nothing else, this trip down memory lane senator leahy and ew have provided us should remind us of the multiple damaging consequences of a political party repeatedly getting away with stealing presidential elections.

  7. Trip says:

    Marcy linked to this, and if you haven’t watched, you should. It sounds like something is about to come out, (which of course the GOP will immediately pooh-pooh):

    Kyle Griffin‏Verified account @kylegriffin1

    CSPAN has posted the entire nearly 8-minute exchange between Kamala Harris and Kavanaugh on the Mueller probe. It is worth your time.

    The California Democrat questioned if Kavanaugh had ever discussed Mueller or the investigation with anyone who worked at law firm founded by Trump’s lawyer.

    This is the kind of question a prosecutor asks when they already know the answer, IMHO.

    • Palli says:

      same impression here: By JOE PATRICE

      “…Harris seemed less interested in building a case for recusal than making sure Kavanaugh knew that she knew that he knew someone at Kasowitz and that she could introduce that fact into the record at any given moment between now and the final vote on the floor.”

      and a sidelight:

      • Trip says:

        Thanks Palli.

        Another thought, unrelated (did not want to open another comment):
        Has anyone asked Kavanaugh whether it’s a conflict of interest (and/or corrupt) if someone entering hearings to find truth on legal positions for SCOTUS, not only has a friend determine which documents could be released from his history, but that this friend also represents as counsel 3 people who are at the least witnesses, potential subjects of an investigation, which he may be responsible for judicial opinion in a SCOTUS Decision?

        I did not see the hearings in entirety, but I’m hoping someone brought this up. Burck should not be wearing all of these hats, manipulating “justice” from within. And yes, I know he wasn’t alone in censoring information, but I don’t think he should have been involved at all. The whole thing stinks to high heaven, and if he doesn’t agree with that, he is one very, very dirty judge.

    • Trip says:

      KatherineHawkins‏ @Krhawkins5

      Kasowitz’s memo to Mueller from June 2017 cites a somewhat obscure bit of dicta from a Kavanaugh opinion in 2013 on the presidents ability to end a criminal investigation (it was by Kavanaugh only; the other judge in the panel majority didn’t join)…Don’t know if that’s related to Harris’s questions…Harris or her staff may know about further back and forth between Kasowitz

  8. earlofhuntingdon says:

    Kavanaugh spent a fair bit of time denying knowledge of his own record.  A reasonable imitation of the Kefauver hearings’, “I have no recollection of that, Senator.”

    Brett Kavanaugh shepherded some of BushCheney’s most controversial judicial nominees through the Senate confirmation process.  He would have gone over his own record of decisions in detail, to determine what he could sell, what he had to hide or fail to recollect.  So, too, with his work in the BushCheney White House.  Of his 99 problems, a failure to recollect is not one of them.

    • Trip says:

      We are embarking on Ukraine level corruption, where the courts are stacked with “the fix” and/or the smotryaschi.

      Kavanaugh couldn’t even feign compassion when that act would have made him look less sociopathic. Imagine when he’s not on his first date behavior.

  9. earlofhuntingdon says:

    On the exchange Kamala Harris had with Kavanaugh yesterday about whether he talked with someone at the Kasowitz law firm about the Mueller investigation, boyish Brett avoided answering the question.

    The interesting part was not Kavanaugh’s adolescent avoidance.  It was that Harris asked whether Kavanaugh had talked with “anyone at the firm.”  Kavanaugh reframed her question to mean anyone “employed” at the firm.

    Everyone at that hearing and many people in government know that partners are not employed by their firm – they own it.  Kavanaugh refused to answer it, but he carved out a truck-sized hole in Harris’s question anyway.

  10. Doctor My Eyes says:

    More verification of the idiocy of “look forward not back”.  Had Congress done what we sent them to do in 2008 and investigated GWB crimes, then many of these things would be in the public record, or at least available in sealed Congressional records.  Also, the general public would be more conversant in these issues.  A 2-year conversation about torture would have laid the groundwork for bringing up the subject today in relation to Kavanaugh. “What a second, is he like Yoo and Bybee, who are serving terms in federal prison?”  As it is, most people would simply think, “Torture?  Isn’t that something from a long time ago that we fixed?  Don’t we like GWB now compared to Trump?” How many people know what Stellar Wind is?  How many remember the outrage when news of spying on Americans first leaked out? Fucking Obama.

    • Kick the darkness says:

      Woke up this AM and for some reason Blood on the Tracks was on my mind.  Played the whole album-twice. Dylan’s amorphous characters and phrases expanded perfectly to fill the current situation.  And the thought I had was if its going to get any better its got to get crazier first.

      Someone’s got it in for me
      They’re planting stories in the press
      Whoever it is I wish they’d cut it out quick
      But when they will I can only guess….

      I ran into the fortune-teller
      Who said beware of lightning that might strike…
      Idiot wind
      Blowing through the buttons of our coats
      Blowing through the letters that we wrote
      Idiot wind
      Blowing through the dust upon our shelves
      We’re idiots, babe
      It’s a wonder we can even feed ourselves

      • Valley girl says:

        Trip, thx.  I have a lot of other stuff going on in my life right now. Among other things, I am dealing with AT&T b/c my internet  connection is for shit.  Going on for 2 months.  Technicians don’t show up and say that they have etc.  I am now “elevated” to priority attention.  Expecting technicians this afternoon.  Everyone in my neck of the woods HATES AT&T.  Corporatism at its best.

        Sorry, I just had to rant.  Selfish, I know.  But, please, I ask that my comment here not be used as a reason to go OT here on corporate hatred.

        • Valley girl says:

          Thx Steve B.  I skimmed through it.  I am not by any means familiar with all the names therein.  But I hope your link is also useful to others.  Again, OT, but I am/ was a scientist, and have served on various grant- review panels.  There is no way to distinguish via valid DNA analysis whether a person is “black” or “white”.  Census forms and NIH applications still ask for investigator, and then (if) human subjects, the same.  Race.  I don’t have similar comparative info about DNA profiles other “races”.  But , wrt to black v white it’s a social “metric” or concept.

          If there’s ever a thread here where my own personal experience of becoming “color blind” at age 18 is relevant, I’ll post it.

  11. Doctor My Eyes says:

    The stealing from Dem’s computers took me back. I can go looking for it if there’s interest, but suffice it to say that I remember being stunned to learn that during the regime of Bush the Younger, a partisan IT firm was installing all shiny brand new Congressional computer toys. I was even more shocked to see almost no outrage over this dangerous fact nor meaningful resistance from Congressional Dems. I guess like so many strange happenings in the 21st century, this one just went away.

    Along the theme of Republicans always lie, here are two wet, steaming quote-plops from the article EW links:

    “But Hatch said Thursday that he had been assured by the White House that no one there saw or used the memos.”

    “Miranda and some conservatives who support him have alleged that the documents show that Democrats colluded with liberal special-interest groups to block or stall the nominations of some of Bush’s more controversial candidates for the federal judiciary.”

    Collusion with liberal special-interest groups–a scourge on our nation.

    • orionATL says:

      real fake-news in its infancy.

      do i need to add that the republican party, in the form of its swarm of crackpot, rightwing bloggers, invented real, honest-to-god fake, fake-news in the early 2000’s?

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