USA F-ReDux Is Non-Exclusive, but the Second Circuit Might Be

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I’m still trying to figure out WTF Mitch McConnell is doing with his Senate machinations over USA F-ReDux. Currently, he has both his short-term reauthorization and USA F-ReDux prepped for a vote, which probably means he’ll bring USA F-ReDux up for cloture or a vote, show that it doesn’t have enough support, and then use that to scaremonger the short-term reauthorization through as a way to wring more concessions out of the House.

Still, given what a dead-ender he is on a bill, USA F-ReDux, that gives the Intelligence Community so many goodies, I can’t help but wonder if there’s another explanation for his intransigence. I can think of one other possibility.

The House Judiciary Committee made it clear USA F-ReDux would be the exclusive means to obtain prospective Call Detail Records under Section 215:

This new mechanism is the only circumstance in which Congress contemplates the prospective, ongoing use of Section 501 of FISA in this manner.

But it made it equally clear it is not the exclusive means to obtain Call Detail Records. That’s because the report envisions conducting federated queries including “metadata [the government] already lawfully possess.”

The government may require the production of up to two ‘‘hops’’—i.e., the call detail records associated with the initial seed telephone number and call detail records (CDRs) associated with the CDRs identified in an initial ‘‘hop.’’ Subparagraph (F)(iii) provides that the government can obtain the first set of CDRs using the specific selection term approved by the FISC. In addition, the government can use the FISC-approved specific selection term to identify CDRs from metadata it already lawfully possesses. Together, the CDRs produced by the phone companies and those identified independently by the government constitute the first ‘‘hop.’’

I suggested here that that other “lawfully possessed metadata” probably consisted of data collected under EO 12333 (and permissible for chaining on US persons under SPCMA) and PRISM metadata.

But maybe that’s not all it includes. Maybe, the government has devise a way by which AT&T (or some other backbone provider) will still provide phone records in bulk on a daily basis? Maybe — as Richard Burr claimed before he later unclaimed — the government secretly maintains an IP dragnet under some other authority?

If that was the plan (though keep in mind, USA F-ReDux passed the House after the Second Circuit decision), then the Second Circuit may have ruined that effort. The ruling should limit all collection under a “relevant to” standard, not just that conducted under Section 215. And, as Faiza Patel argued, the decision should also affect collection where the government has dodged Fourth Amendment issues by focusing on “searches” rather than “seizures.”

[A]s Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question.

I’ve already suggested the decision might create problems for the virgin birth DOJ secretly gave to EO 12333 data used in SPCMA.

But who knows what else it applies to?

After all, USA F-ReDux was written so as to allow other dragnets (which is what EO 12333 is, after all). But the Second Circuit may pose problems for such dragnets that USA F-ReDux did not.

Going back to Richard Burr’s odd colloquy — which his office’s excuses simply cannot rationally explain — I think it (very remotely) possible the government is dragnetting IP addresses (perhaps for cybersecurity rather than counterterrorism purposes), but worries it has lost authority to do so with the Second Circuit decision. If so, it might be using this fight over counterterrorism data collection to lay congressional support for broader dragnet collection, to be able to sustain whatever other dragnets it has in place.

Michael Hayden’s Masturbatory Claims of Dragnet Efficacy

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In a bid to extend a dragnet that has proven useless in the function the Intelligence Community claims it serves, Mitch McConnell is claiming there are secret reasons we need to keep the dragnet.

It’s possible this is just a tactic, to gain leverage to make USA F-ReDux even worse.

It’s possible that McConnell just wants to retain the dragnet to identify people to coerce into becoming informants, the use the FBI has claimed for the dragnet that never got included in its more public assessments of value.

It’s possible McConnell wants to retain a dragnet — and finally expand it to include most Internet metadata — because he can (and all of our Five Eyes allies have done so in the wake of Snowden’s leaks).

But I want to submit another possibility, based on the Stellar Wind IG Report.

In its assessment of the Stellar Wind dragnet — the same section that notes that 1.2% of all tips made a “significant” contribution to finding terrorists (and that measure included deporting suspected terrorists and identifying potential informants, not just identifying actual terrorists) and Internet dragnet tips had made no contribution — the report explained Michael Hayden’s justification.

Hayden also observed that the enemy may not have been as embedded in the United States as much as feared but said that he believes Stellar Wind helped determine this.

[snip]

Other witnesses, such as General Hayden, said that the value of the program may lie in its ability to help the Intelligence Community determine that the terrorist threat embedded within the country is not as great as once feared. (PDF 647, 664)

Now, remember, to justify operating this program in defiance of the law (and to justify getting FISC to rubber stamp it in 2004 in defiance of common sense), John Brennan and his colleagues would routinely write a “scary memo” to establish that the threat of a terrorist attack on the US was so big that the government needed the program. Probably, they used Khalid Sheikh Mohammed’s claim that he had gotten a Briton to recruit non-existent black Muslims in Montana to start forest fires for the 3 months of 2003 that CIA believed that ruse. We know in 2004, the CIA drummed up fear of an election year plot — seeded by a fabricator and sustained through CIA’s use of torture — to sustain the initial Internet dragnet order.

The point is, for the entire life of the dragnet, the government justified it by talking about scary terrorists embedded in the US.

And then, when challenged in 2009 to explain the value of the dragnet, Hayden explained that it was useful because it proved those claims of scary terrorists embedded in the US turned out to be overblown.

The best Hayden can offer — after years of overseeing a dragnet — is that it proved the IC’s overblown claims in the first place were overblown.

Behind all this dragnettery, then, lies a great deal of masturbatory fear-mongering.

 

 

Joel Brenner Reveals David Addington’s Sources and Methods

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Several people (including Dan Froomkin) have pointed to the speech former NSA Inspector General Joel Brenner gave at NSA today for the confirmation of what was pretty clear from the joint IG Report on Stellar Wind — that David Addington ran the program out of OVP.

The seed of the problem was planted shortly after 9/11, when the White House determined to undertake certain collection outside the FISA regime under a highly classified, but now mostly declassified, program called STELLAR WIND. That program was not SAP’ed, because the creation of a new special access program requires Congressional notification, but it was run directly by the Office of the Vice President and put under the direct personal control of the Vice President’s counsel, David Addington.

But there’s another detail I find more interesting (aside from Brenner’s note that parts of the program remain classified, which people often forget).

Stellar Wind was not SAP’ed, Joel Brenner (who was, at least according to the IG Report, not read in himself until far later than he makes out in his speech).

Because if it were SAP’ed — if it were made a Special Access Program — then Congress would have had to be notified.

I’m interested in that for two reasons.

First (and most prosically), the Executive was messing around with the classification of Stellar Wind at least until January 2009, when they appear to have been making last minute adjustments to gain advantage in the al-Haramain suit.

More interestingly, because the Executive claims Congress was notified (even in that IG Report, though interestingly enough, some accountings of Congressional briefings got redacted in the underlying reports). Joel Brenner is here suggesting that they weren’t, really. Which is consistent with the fact that the briefing Congress got on March 10, 2004 was different in substance than what they had gotten before then.

Finally, because there are questions about when and who made the torture program a SAP. It appears not to have happened until early 2003 (and some of CIA’s own briefing records suggest that’s when the first torture briefings were, notwithstanding the September 2002 briefings for the Gang of Four).

Brenner’s suggestion makes it likely (as if it weren’t already) that that decision, too, was driven by Addington.

Did the Second Circuit Decision ALSO Blow Up SPCMA?

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In a post on last week’s Second Circuit opinion finding NSA’s Section 215 phone dragnet unlawful, Faiza Patel observed that the government may have problems with the court’s ruling that a seizure of metadata can constitute an injury. She points to DOD directive 5240.1-R as a rule that may be impacted.

Second, as Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question.

[snip]

Another set of programs for which “collection matters” are those conducted under Executive Order 12,333. Department of Defense directive 5240.1-R, which sets out procedures for intelligence activities that affect U.S. persons, states:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties … Data acquired by electronic means is “collected” only when it has been processed into intelligible form. (Emphasis added.)

Although the directive does not explain what constitutes an “intelligible form” of electronic data, another regulation (USSID 18) states that information becomes “intelligible” and is therefore “collected” when a NSA analyst “intentional[ly] task[s] or select[s]” a communication of interest for “inclusion in a report or retention as a file record.” This is a critical distinction because protections for US persons under Executive Order 12,333, Presidential Policy Directive 28, and subsidiary regulations are triggered when information is “collected” per the government’s definition.

All the caveats about not being a lawyer, I think there’s a subset of practices under 5240.1-R that may be particularly acutely affected: SPCMA, the authority that the NSA uses to contact (and, presumably, connection) chain on US person metadata collected overseas.

As I pointed out here, OIPR (during a period when it was headed by current FBI General Counsel James Baker) originally informally advised that NSA had to stop chaining when it hit a US person. But then, a rather suspiciously short period after Baker left in 2007, Steven Bradbury and Ken Wainstein came up with a theory whereby such data did not count as an acquisition — because it had already been collected — and therefore could be chained through.

The fourth definition of electronic surveillance involves “the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication …. ” 50 U.S.C. § 1802(f)(2). “Wire communication” is, in turn, defined as “any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier …. ” !d. § 1801 (1). The data that the NSA wishes to analyze already resides in its databases. The proposed analysis thus does not involve the acquisition of a communication “while it is being carried” by a connection furnished or operated by a common carrier. (S//SI)

[snip]

The current DOD procedures and their Classified Annex may be read to restrict NSA’s ability to conduct the desired communications metadata analysis, at least with respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures’ definitions of, and thus restrictions on, the “interception” and “selection” of communications.

Accordingly, the Supplemental Procedures that would govern NSA’s analysis of communications metadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communications, nor do they qualify as ‘us[ing] a selection term,’ including using a selection term ‘intended to intercept a communication on the basis of. .. [some] aspect of the content of the communication.” Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex. (S//SI)

As I’ve previously explained, it works out to a kind of virgin birth, all to avoid the actual seizure moment that would implicate EO 12333.

That virgin birth theory led to this paragraph in supplemental procedures that amend 5240.1-R to treat metadata analysis (it doesn’t say it here, but it means, of US persons) as something other than an interception.

S//SI) For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

I’m not sure, but Gerard Lynch’s opinion may pose real problems for this virgin birth theory. And oh, by the way, a lot of this data leads to data ending up in FBI’s hands which would be overseen by … James Baker, who may have had a problem with this argument in the past, even without the Second Circuit decision.

All of which is one way of saying that, in addition to creating some pressure on Congress to pass USA F-ReDux, this bill may have (though I await actual lawyers to consider this question) created far, far larger problems for SPCMA, which is understood to have been one of the places where the old domestic Internet dragnet went to (which might explain why Richard Burr was talking about Internet dragnets on the floor of the Senate the other day).

If so, the government has a far bigger headache than just the one created for the domestic phone metadata program.

In 2003, OLC Doubled Down on Unlimited (de)Classification Authority for the President

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One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.

On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This appears to have led directly to Comey drafting his resignation letter.

But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).

Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]

I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).

The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.

And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.

But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.

Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.

That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.

How the NSA Connection Chains without Calls

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Screen Shot 2015-05-08 at 3.19.27 PMFor a very long time, I’ve been trying to figure out what the government means when it says it “connection chains” data call detail records under its Section 215 dragnet (and, possibly, once it passes, under USA F-ReDux).

The phone dragnet first started moving towards “connection chaining” in 2013, when Dianne Feinstein included the concept in her Fake FISA Fix.

Scope of permissible query return information:

For any query performed pursuant to paragraph (1)(D)(i), the query only may return information concerning communications—

(A) to or from the selector used to perform the query;
(B) to or from a selector in communication with the selector used to perform the query; or
(C) to or from any selector reasonably linked to the selector used to perform the query, in accordance with the court approved minimization procedures required under subsection (g). [my emphasis]

The February phone dragnet order that approved Obama’s modified approach also approved (though it may have approved earlier) chaining on “connections” in addition to “contacts” made.

The first “hop” from a seed returns results including all identifiers (and their associated metadata) with a contact and/or connection with the seed. The second “hop” returns results that include all identifiers (and their associated metadata) with a contact and/or connection with an identifier revealed by the first “hop.”

And all versions of USA Freedom Act, once the Intelligence Community got their whack at them, chained on “connections” as well as calls.

(iii) provide that the Government may require the prompt production of call detail records—

(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

(II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

The latest version of USA F-ReDux takes a different approach, with two hops, neither of which requires that Call Detail Records — defined as a set of 5 things that may but are not required to be included, just one of which involves calls made — reflect calls made. And the second hop invokes “session identifying information” that is divorced from the definition of CDRs that excludes (for example) location data.

(iii) provide that the Government may require the prompt production of a first set of call detail records using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii);

(iv) provide that the Government may require the prompt production of a second set of call detail records using session-identifying information or a telephone calling card number identified by the specific selection term used to produce call detail records under clause (iii)

Absent more limiting language, I read this as permitting the government to require (immunized and compensated) providers to find CDRs using session identifier information that the government itself is not permitted to receive to find a set of “CDRs” of interest (again, without requiring that the CDRs have to reflect calls made, because that’s not a required aspect of the definition).

I’ve been having a hard time explaining what that might involve.

But today’s Intercept story shows what chaining NSA does that does not involve calls made.

Screen Shot 2015-05-08 at 3.37.45 PMAs the slide, above (from this deck), makes clear, with data collected from Pakistan, they start with selectors of people who have not left Af-Pak, and then match phone use not involving calls made. It does this by training the computer on what is normal and what is unique to identifiers previously IDed as couriers. It proves its data works, of course, by showing that Ahmed Muwafak Zaidan is the top match, even though Zaidan isn’t a terrorist at all! But it shows that the government will use location data to “chain” on people connected primarily by location habits.

The other deck describes the Automated Bulk Cloud Analytics, SKYNET. The slide to the left describes tracking things, all but one of which involves “session identifying information” that doesn’t involve any actual calls made (though this scheme also has access to phrases made, which any domestic program could not).

  • Travel patterns, including repeated visits to particular locations (obtained using location data)
  • Patterns of call usage (incoming only, “excessive” SIM or handset swapping or power-downs probably indicating counter-surveillance)
  • Co-travelers (obtained using location data — and we know AT&T does this under Hemisphere)
  • Similar travel patterns (again, obtained using location data)
  • Common contacts

Screen Shot 2015-05-08 at 3.43.55 PM

Only common contacts involve calls made (though that could even come from address books, which we know NSA collects).

And the outcome of this process is a set of identifiers — some tasked, the others not yet tasked — all of which (as either IMSIs or Handsets) would qualify as CDRs under USA F-ReDux.

None of this proves this is what the government wants to do with the hop process under USA F-ReDux.

But it does show that the NSA has a whole approach to analysis that has nothing to do with contact chaining, chaining on calls made, but instead chains on connections. The key input to that process is location data, which the government can’t obtain as a CDR under USA F-ReDux, but which telecoms need to provide service and therefore would have available to conduct analysis (and again, AT&T does some of this analysis now under Hemisphere).

These slides don’t prove that’s what the government intends under USA F-ReDux. But it does show it’s the kind of thing the NSA does, regularly, with its metadata analysis.

Richard Burr’s IP Dragnet Disappears into the Memory Hole

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As I noted yesterday, Richard Burr gave a planned colloquy on the Senate floor yesterday in which he said bulk collection included IP addresses.

Now what’s bulk data? Bulk data is storing telephone numbers and IP addresses — we have no idea who they belong to — that are domestic. And the whole basis behind this program is that as a cell phone is picked up in Syria, and you look at the phone numbers that phone talked to, if there’s some in the United States we’d like to know that — at least law enforcement would like to know it — so that we can understand if there’s a threat against us here in the homeland or somewhere else in the world. So Section 215 allows the NSA to collect in bulk telephone numbers and IP addresses with no identifier on it. We couldn’t tell you who that American might be. [my emphasis]

Here’s a CSPAN clip of that discussion.

Curiously, here’s how that passage looks in the Congressional Record. (h/t Steven Aftergood)

What is bulk data? Bulk data is storing telephone numbers–we have no idea to whom they belong–that are foreign and domestic. The whole basis behind this program is that as a cell phone is picked up in Syria and we look at the phone numbers that phone talked to, if it is someone in the United States, we would like to know that–at least law enforcement would like to know it–so we can understand if there is a threat against us here in the homeland or somewhere else in the world.

Section 215 allows the NSA to collect, in bulk, telephone numbers with no identifier on them. We couldn’t tell you who that American might be. [my emphasis]

Note, the Congressional record also added “foreign” on to the description of telephone numbers collected. We know NSA collects IP addresses overseas, so it may be that’s what Burr was thinking about (or it may be in this doctored Congressional record, he added foreign because that would be unsurprising).

I called Burr’s office yesterday to ask about this, but have thus far gotten no response.

The Double-Edged Sword of Counter-Proliferation Spying

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When Congress passed FISA Amendments Act in 2008, they added language approving of spying for counterproliferation purposes. One of three known certificates under Section 702 is for counterproliferation. President Obama’s Directive purporting to limit the government’s EO 12333 spying explicitly says bulk data can be used to police sanctions, and explicitly says the US does not consider sanctions spying to constitute spying for competitive advantage. USA F-ReDux even expands the authorization to use traditional FISA orders to spy on those who “knowingly aid or abet” or “knowingly conspire with any person to engage in” WMD proliferation.

The US is very clear that it will focus the tools of its spying on those involved in proliferation and weapons sanctions violations and in fact plans to intensify that focus.

Which is why it is so easy for NSA to spy on a target at Airbus in charge of Export Controls Licenses (even if it did violate NSA’s Memorandum of Understanding with BND, though it’s not entirely clear this targeting happened in Germany).

In other documents from the Snowden archive, the aerospace concern EADS, which is now called the Airbus Group, is even connected to a specific name together with a Saudi Arabian telephone number.

The EADS employee works in a sensitive department in the company: He is responsible for securing arms exports licenses for the company’s defense division. Many such deals are top secret and are reviewed only by the Federal Security Council, a cabinet committee that is not under parliamentary supervision. The man is marked as a hit and as a potentially interesting new surveillance target.

That’s precisely where you’d look to find out if someone was illicitly creating export control licenses to bypass sanctions. Of course, it’s also where you’d look to find out if the Europeans were cutting into US arms sales business to Saudi Arabia.

Airbus is suing for illegal spying because it was targeted by the NSA via Germany, which should get fun.

But at the exact moment France is squawking about that, they’re nuzzling up with the Saudis, trying to obstruct or slow the deal with Iran.

Saudi Arabia invited French President Francois Hollande, whose country is deemed to have the toughest stance among the six world powers negotiating with Iran, to Riyadh to discuss regional issues with Gulf Arab leaders who fear a rapprochement with Tehran could further inflame the region.

“France and Saudi Arabia confirmed the necessity to reach a robust, lasting, verifiable, undisputed and binding deal with Iran,” Hollande and the new Saudi King Salman said in a statement after meeting on Monday.

This strong stance in the face of a deal comes as France has worked to supplant some of US arms sales in the Gulf.

There’s a supreme irony here. The only way that an Iran deal will be verifiable is via unfettered spying (including in the US, where Iranian proliferation targets appear to get treated as terrorist targets do). But the rationale for that unfettered spying would also permit NSA to spy on arms dealers competing with American dealers.

The US says it never uses such spying for competitive advantage. An Airbus suit may really test that claim.

Alberto Gonzales: The Counsel Represented by Counsel and Babysat by Cheney’s Counsel

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Footnote 147 of the DOJ IG Report on Stellar Wind (PDF 462-3) modifies a discussion of the discussions on March 6 and 7, 2004 in which Jack Goldsmith and Patrick Philbin informed David Addington and Alberto Gonzales that they could not reauthorize Stellar Wind — in spite of applying a relaxed standard of review — because the White House wanted them to affirm that John Yoo’s November 2, 2001 memo had covered the program, yet Yoo’s memo had not included all aspects of it (this likely pertains to the collection of Internet metadata from telecom switches, though it may also pertain to the collection on Iraqi targets).

After reporting Gonzales’ claimed reaction to the meetings at which DOJ’s lawyers told the White House the program was illegal, the report notes that Gonzales was lawyered up at his IG interview, but later provided further elaboration in writing.

Later on March 6, Goldsmith and Philbin went to the White House to meet with Addington and Gonzales to convey their conclusions that the [2 lines redacted] According to Goldsmith’s chronology of these events, Addington and Gonzales “reacted calmly and said they would get back with us.” Goldsmith told us that the White House was not worried that it was “out there,” meaning that it was implementing a program without legal support.

On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin’s interpretation of Yoo’s memoranda and on the need to change the scope of the NSA’s collection. Gonzales told us that he recalled the meetings of March 6 and March 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to “find a way forward.”147

147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal support for the program and [redacted]. Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of the report, he stated that he would not have brought Goldsmith and Philbin’s “concerns” to the attention of the President because there would have been nothing for the President to act upon at this point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President’s attention if the President could make a decision about them.

Remember the situation Gonzales would have been in. The interview (and probably, though not certainly, the review of the draft) would have taken place in fall to winter 2008, when Bush was still in office.

Thus, the interview would have happened during the period or just after DOJ IG conducted an investigation into what amounted to a CYA file Gonzales had carried around in his briefcase — documents and draft documents relating to all the illegal programs in which he had been involved, including his notes pertaining to the hospital confrontation over Stellar Wind. There’s reason to believe he was referred for that investigation precisely because it was recognized as a CYA file and he was no longer regarded as loyal on surveillance issues.

In addition, at the time, too, DOJ was still considering whether to file charges against Gonzales for the US Attorney scandal. So it makes sense that Gonzales’ retained lawyer, George Terwilliger, was there (and it is somewhat surprising that, given that John Ashcroft got away without cooperating, Terwilliger let him cooperate).

But then there is Emmet Flood.

Both before and after his tenure in the White House Counsel’s office — where he was brought in to deal with the scandals of the late Bush Administration — Flood was (and remains) a partner at Williams & Connolly. And not just a partner. He was formally part of Dick Cheney’s defense team when Patrick Fitzgerald was honing in on the Vice President for leaking Valerie Plame’s identity, and Flood would remain involved in protecting Cheney even after moved onto the taxpayer dime.

Emmet Flood may have been there in the name of protecting Executive Privilege, but it was not Bush’s privilege Flood was protecting.

So we learn that on March 6, 2004, Goldsmith and Philbin tell Gonzales and Addington that parts of Stellar Wind have never been legal. On March 7, 2004, Gonzales and Addington come back and tell OLC’s lawyers they’re wrong.

And when DOJ’s IG asked Gonzales whether — in the interim day — he had informed the President about this, Cheney’s defense lawyer pipes up and tells him not to answer. Given that Bush apparently learned new details of all this 4 days later when Comey and Robert Mueller would tell him directly, the answer is no (which is consistent with what Gonzales said when Cheney’s lawyer wasn’t present).

Which leaves the logical and thoroughly unsurprising conclusion — but one Cheney’s taxpayer funded lawyer didn’t want included in a legal document — Cheney (who is not a lawyer, nor does he have Article II authority directly) is the one who told Gonzales and Addington to dig in.

Update: Flood also had Gonzales refuse to answer a question about whether anyone had thought to include DOJ in the meeting with Congress.

OLC Lowers Its Standards for Retroactive Legal Reviews

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There’s an interesting passage in the DOJ IG discussion of Jack Goldsmith’s efforts to rewrite the Stellar Wind OLC memos (PDF 456).

The first passage describes Jim Comey permitting a lower standard of review to apply for activities already in process.

In explaining the rationale for the revise opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, OLC’s legal analysis will be based on a “best view of the law” standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137

137 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advise on an ongoing program because the pressure “to say ‘yes’ to the President” invariably would result in applying a lower standard of review. Goldsmith stated that OLC’s involvement in Stellar Wind was “unprecedented” because OLC is always asked to review the facts and formulate its advice “up front.”

If it was unprecedented on March 1, 2004, it quickly became common.

After all, Goldsmith was asked to consider how the Geneva Convention applied to various types of detainees in Iraq, after the Administration had already been and continued to render people out of that occupied country. And he was also in the midst of a review of the torture program.

Indeed, Daniel Levin, who would go on to reconsider torture approvals until Cheney booted him out of the way to have Steven Bradbury rubberstamp things, would have been a part of those discussions.

So when, in fall 2004, he was asked to reconsider torture, that lower standard of review would have been in his mind.

You could even say that this standard of review gave CIA an incentive to start and continue torturing Janat Gul, on whom they pinned their need to resume torture, even after they accepted he was not, as a fabricator had claimed, planning election year plots in the US. So long as they tortured Gul, Levin would be permitted to apply a lower standard to that torture.

In any case, if this was unprecedented then, I suspect it’s not anymore. After all, by the time David Barron first considered the drone killing memo for Anwar al-Awlaki, the Administration had apparently already tried to kill him once. And the Libyan war had already started when OLC started reviewing it (though they made a heroic effort to rule it illegal, which is a testament to just how illegal it was).

With regards to the Stellar Wind OLC, the discussion of what Goldsmith found so problematic is mostly redacted. Which is why I’m interested in his opinion that “‘we can get there’ as to [redacted] albeit by using an aggressive legal analysis.” That says that one of the things his opinion would approve — either the content collection of one-end foreign communications or the dragnet collection of telephone metadata — involved “aggressive legal analysis” even to meet this lower standard.

It’d sure be nice to know which practice was considered so marginally legal.

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