Crowd of Unilateral Lawyers Applaud Unilateral Operator

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Sarah Cleveland? Not a judge. Greg Craig? Not a judge. William Dodge? Not a judge. Jeh Johnson? Not a judge. David Kris? Not a judge. David Martin? Not a judge. Daniel Meltzer? Not a judge. And Trevor Morrison?

Also not a judge.

Nevertheless, these eight lawyers–all of whom served the function of interpreting the law for the Executive Branch within the Executive Branch for Obama (and, in Kris’ case, for Bush)–assure you that John Brennan will uphold our laws.

Throughout his tenure as Assistant to the President for Homeland Security and Counterterrorism in the Obama Administration, John Brennan has been a persistent and determined leader in support of adherence to the rule of law, a principled commitment to civil liberties and humanitarian protection, and transparency. On a broad range of issues, he has endeavored to ensure that the national security practices of the United States Government are based on sound long-term policy goals and are consistent with our domestic and international legal obligations, as well as with broader principles of democratic accountability. John Brennan has been a steadfast champion of the President’s commitment to closing the detention facility at Guantánamo, and has urged that our Article III courts remain a vital tool in our counterterrorism toolbox. He has stood firmly with the President’s efforts to ensure that interrogations are conducted in accord with the law and our values. And he has worked to ensure that the responsible and effective pursuit of our counterterrorism objectives will not depend simply on the good instincts of officials, but will instead be institutionalized in durable frameworks with a sound legal basis and broad interagency oversight.

[snip]

John Brennan understands that adherence to the Constitution and the rule of law serve, rather than undermine, our national security interests. Time and again, he has demonstrated seasoned wisdom and judgment in responding to our nation’s greatest national security threats, and he has consistently reaffirmed his core commitment to conducting our national security and counterterrorism policy in a fashion that comports with our deepest values. [my emphasis]

Sure, there are a few tells–such as the boast that his pursuit of counterterrorism objectives will be institutionalized in a broad interagency–not interbranch–oversight. Or, on the reverse, the claim that John Brennan–whose solution to the National Counterterrorism Center’s failure to fulfill minimization requirements was just to open up all Federal databses to NCTC without that minimization–has a “principled commitment to civil liberties.”

But mostly, it’s the structural problem here. Regardless of what John Brennan himself believes–and all the public evidence suggests these lawyers are too close to judge and perhaps just a little seduced by the old spook–this Administration doesn’t stand for any of these things.

More importantly, this Administration has refused just about every opportunity to have someone else–lawyers and judges who hadn’t counseled these policies from the start–weigh these issues. The Administration has shown great disdain for both democratic accountability and Article III courts. It has ensured that interrogations–both those conducted under Bush and those conducted in dark prisons under Obama–never be tested for whether they accord with the law. Indeed, Obama’s Administration has gone to great lengths to hide our torture from international oversight and even from litigants in our own courts.

So even assuming John Brennan is the nice guy these lawyers say he is–an assumption that defies the evidence–they’re still damning Brennan with the same illegitimate argument the Obama Administration has always relied on:

Trust us.

They are emphasizing precisely why John Brennan’s success in an Administration that has refused even basic oversight should not be sufficient for confirmation to lead a secretive agency.

And while in any other week I might be inclined to grant David Kris’ word great weight, not this week. After all, Kris warned we might get into trouble with Hamdan’s material support for terrorism conviction years ago. Nevertheless, the Obama Administration is treating Gitmo with the same Kangaroo arrogance that Bush did, refusing to take the DC Circuit’s ruling on Hamdan as law, overriding their own prosecutor at Gitmo. This Administration–Brennan’s Administration–is defiant of even the warnings Kris offered years ago. So when Kris and other lawyers boast that Brennan will be a great leader consistent with Obama’s policies…

He is also exceptionally qualified to provide leadership and direction to the Agency, consistent with President Obama’s national security objectives.

… It’s shouldn’t exactly count as a glowing endorsement.

Sure, this letter to Dianne Feinstein in support of Brennan’s nomination will work. It’ll provide cover for all the evidence that Brennan is none of these things. At the very least, it’ll force a few Democrats on the Senate Intelligence Committee to consider whether they’re prepared to admit that Obama’s policies exhibit none of this respect for rule of law. Which they aren’t, yet. So it’ll serve its purpose.

The last actual judge who got a glimpse at the Obama Administration’s claim to abide by the rule of law had this to say:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping reasons for their conclusion a secret.

John Brennan is the knave of this Alice in Wonderland system of legal justice.

I take that as a far better read of Brennan’s fitness to be CIA Director than the word of the Queen of Hearts’ other cards up her sleeve.

Update: Conor Friedersdorf does more fact-checking of the claims in the letter.

Rather than Lying to Congress, CIA Now Blows It Off

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Five months into Obama’s first term, then-CIA Director Leon Panetta caused a scandal by telling Congress about Blackwater-staffed assassination squads deployed under the Bush Administration; we would ultimately learn the program was run by a still-active mafia hitman.

Partly in response and partly because of the CIA’s lies to Congress under the Bush Administration, the Intelligence Committees began to tie funding to full briefing of the Committees, rather than just Gang of Eight (which were really Gang of Four) briefings Bush used to avoid oversight. The White House responded by issuing a veto threat if Congress violated the “fundamental compact” of letting CIA operate with almost no oversight. In response, after adding the shoot-down of a missionary plane to the scope, then House Intelligence Chair Silvestre Reyes got Pete Hoekstra to support an investigation into all the times CIA lied to Congress, which Reyes announced in July 2009. By October 2009, the House Intelligence Committee released its preliminary conclusion that CIA had lied to Congress on at least five occasions. In summer 2010, Nancy Pelosi got pissed. In October 2010, Obama finally signed Intelligence Authorization purportedly agreeing to new oversight. In November 2010, Reyes released the final results of the HPSCI inquiry, which showed that “in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies.” However, he said, most of the problems were fixed with that year’s Authorization. In the next Congress, Reyes would be replaced as Ranking Member at HPSCI by Dutch Ruppersberger, a servant to the NSA.

From June 2009 until October 2010, a Democratic Congress and the Obama Administration were engaged in a surprisingly contentious argument over whether the Administration would permit Congress to engage in adequate oversight of the Intelligence Community. In October 2010, the Administration purportedly agreed to abide by the clear terms of the National Security Act, which requires briefing of all members of the Intelligence Committees on covert programs.

With that in mind, consider the timeline suggested by Senate Intelligence Committee member Ron Wyden’s letter to John Brennan (see also this post).

December 2010: Wyden and Russ Feingold ask Eric Holder about “the interpretation of a particular statute” (probably having to do with online privacy)

Before January 2011: Wyden asks about targeted killing authority

April 2011: Wyden calls Eric Holder with questions about targeted killing authority

May 2011: Intelligence Community provides some response to Wyden, without answering basic questions

Before January 2012: Wyden asks for “the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities”

Early 2012: Wyden repeats request for response to letter about a particular statute (probably online privacy)

February 2012: Wyden renews his request for answers on targeted killing

In October 2010, the Obama Administration agreed to let Congress oversee the Intelligence Community’s activities.

Almost immediately thereafter, the Administration started stonewalling Wyden, a member of one of those Committees with supposedly renewed oversight authority, on at least three issues (though two–the lethal authority and the targeted killing–are closely related). (As I’ll discuss in a follow-up post, they also blew off Wyden’s request to revoke an OLC opinion that probably guts Americans’ privacy.)

And remarkably, one of the topics on which the IC is stonewalling Wyden–where the IC has engaged in lethal counterterrorism authorities–may well be precisely the issue that set off this process back in June 2009, the use not just of drones to kill alleged terrorists, but also assassination squads.

Even as Wyden made this timeline clear, he also revealed not only that the CIA lied to all the outside entities overseeing its torture program, but continues to lie to the American people about that program.

As Obama’s top counterterrorism advisor and an at least tangential participant in the earlier decisions on the “lethal counterterrorism authorities,” John Brennan has presumably been instrumental in the continued stonewalling of Congress. In a few weeks, he hopes to be approved to lead the CIA.

“Liberal” 9th Circuit Deals Death Blow To Al-Haramain Illegal Wiretapping Accountability Case

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There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.

A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:

The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.

It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the Read more →

The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

Read more →

The Kiriakou Conundrum: To Plea Or Not To Plea

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There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists’ motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
….
“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

The once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

Putting the Torture Back in the Torture Whistleblowing Case

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Kevin Gosztola has suggested and Josh Gerstein has confirmed that, along with Matthew Cole and Scott Shane, John Kiriakou has subpoenaed the Washington Post’s Julie Tate to give a deposition in his leak case.

The Shane subpoena is unsurprising. After all, it’s pretty clearly DOJ found Kiriakou through Shane’s June 22, 2008 story for which he claims to have 24 sources. Meaning any of the 23 other sources may be possible sources for Deuce Martinez’ identity, one of the charged leaks in the indictment. What’s interesting, however, is that Jesselyn Radack suggested to me on Twitter that Kiriakou might not subpoena Shane.

Matthew Cole is a more interesting subpoena, though also not surprising. After all, this investigation started not by investigating Shane’s story, but investigating the name of torturers submitted in a Gitmo filing. Presumably, then, DOJ first grilled the lawyers and their investigators about how they had learned the identities of the torturers they had included in that filing (note, Covert Officer A was not named there, because he was still covert), and from there they ultimately found Kiriakou.

Which brings us to Tate, who previously hasn’t been mentioned in this case. Gerstein writes,

Tate, a Post researcher who worked on stories about the Guantanamo prisoners and helped develop a Post databased of the inmates, was not mentioned in the indictment. However, Kiriakou’s lawyers said in a court filing “information developed by Mr. Kiriakou’s defense indicates that Researcher 1 [Tate] participated with Journalist A  [Cole] in certain activities alleged in the Indictment.”

Cole wasn’t actually alleged to have done anything in the indictment (though the complaint gets closer to suggesting he was investigating the torturers for the Gitmo defendants). But the suggestion is he was in a chain of information that ultimately led back to a bunch of lawyers unjustly accused of improperly treating classified information in a bid to defend their clients. Radack suggested Tate had a similar role.

What do @matthewacole & @JulieATate have in common?

I’m guessing this suggests Tate was somewhere in that same chain of information.

Consider for a moment how this complaint and indictment were structured by the now-retired Patrick Fitzgerald: Covert Officer A was not named in the original Gitmo filing, because he was covert. And Deuce Martinez may have been named, but he did not do the torturing; he did the questioning.

So Fitzgerald structured this case so as to avoid mentioning–much less admitting–that at its root lies a bunch of men guilty of torture. At its root lies the effort to hide the identity of torturers, and CIA’s efforts to punish those who brought that to light. If I’m right, and Tate is in that chain of people who exposed the identity of some torturers, then that’s part of what Kiriakou’s after: to show that he was simply involved in an effort to expose torturers. A whistleblower.

But there’s one other element. Radack also notes the irony here: the government is in a pickle, because they’ve been working very hard in the Jeffrey Sterling case to establish a precedent saying journalists can be subpoenaed in the same District as the Kiriakou case, EDVA, CIA’s home District. So they can’t very well turn around and say these journalists can’t be subpoenaed here. All the more so given that Kiriakou doesn’t have the luxury of just dropping the case to avoid subpoenaing the journalists, as the government does in Sterling.

I’m not sure it’ll work, but the Tate and Cole subpoenas sure seem like an effort to put the real lawbreakers–the torturers–back in the forefront of this case.

No Easy Day, WikiLeaks, and Mitt’s 47%: Three Different Approaches to Illicitly-Released Information

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[youtube]nYXXkOLgMqQ[/youtube]

Last week, DOD issued a guidance memo instructing DOD personnel what they are–and are not–permitted to do with the Matt Bissonnettte book, No Easy Day, that they claim has sensitive and maybe even classified information. DOD personnel,

  • are free to purchase NED;
  • are not required to store NED in containers or areas approved for the storage of classified information, unless classified statements in the book have been identified;
  • shall not discuss potentially classified and sensitive unclassified information with persons who do not have an official need to know and an appropriate security clearance;
  • who possess either firsthand knowledge of, or suspect information within NED to be classified or sensitive, shall not publically speculate or discuss potentially classified or sensitive unclassified information outside official U.S. Government channels (e.g., Chain-of-Command, Public Affairs, Security, etc.);
  • are prohibited from using unclassified government computer systems to discuss potentially classified or sensitive contents ofNED, and must not engage in online discussions via social networking or media sites regarding potentially classified or sensitive unclassified information that may be contained in NED.

The memo points to George Little’s earlier flaccid claims that the book contains classified information as the basis for this policy, even though those claims fell far short of an assertion that there was actually classified information in the book.

The strategy behind this policy seems to be to accept the massive release of this information, while prohibiting people from talking about what information in the book is classified or sensitive–or even challenging Little’s half-hearted claim that it is classified. Moreover, few of the people bound by this memo know what the President insta-declassified to be able to tell his own version of the Osama bin Laden raid, so the memo also gags discussions about information that has likely been declassified, not to mention discussions about the few areas where Bissonnette’s version differs from the Administration’s official version.

Still, it does let people access the information and talk about it generally.

Compare that policy with the Administration’s three-prong approach to WikiLeaks information:

  • Government employees cannot discuss–and are not supposed to consult at all–WikiLeaks cables. The treatment of Peter Van Buren for–among other things–linking to some WikiLeaks cables demonstrates the lengths to which the government is willing to go to silence all discussion of the cables. (Though I imagine the surveillance of social media will be similar to enforce the DOD guidance.)
  • Gitmo lawyers not only cannot discuss material–like the dodgy intelligence cable that the government used to imprison Latif until he died of still undisclosed causes or the files that cite tortured confessions to incriminate other detainees–released by WikiLeaks unless the press speaks of them first. But unlike DOD personnel who do not necessarily have a need to know, Gitmo lawyers who do have a need to know couldn’t consult WikiLeaks except in closely controlled secure conditions.
  • The Government will refuse to release cables already released under FOIA. While to some degree, this strategy parallels the DOD approach–whereas the NED policy avoids identifying which is and is not classified information, the WikiLeaks policy avoids admitting that cables everyone knows are authentic are authentic, the policy also serves to improperly hide evidence of illegal activity through improper classification.

Now, one part of the Administration’s logic behind this approach to purportedly classified information (thus far without the legal proof in either case, or even a legal effort to prove in the case of Bissonnette) is to limit discussion of information that was allegedly released via illegal means. Read more →

DOD to Give Penguin the WikiLeaks Treatment?

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As a number of outlets have reported, DOD has written a threatening letter to Matt Bissonnette, the Navy SEAL whose memoir comes out next week.

But I think they’re misunderstanding part of the nature of the threat (though Mark Zaid, a lawyer who has represented a lot of spooks in cases like this one, alludes to it here, which I’ll return to). Here are, in my opinion, the two most important parts of the letter. First, DOD’s General Counsel Jeh Johnson addressed it to Penguin’s General Counsel as the custodian for the pseudonymous writer he makes clear he knows the real identity of elsewhere in the letter.

Mr. “Mark Owen”

c/o Alexander Gigante, Esquire

General Counsel

Penguin Putnam, Inc.

That, by itself, is not a big deal. But it does mean Johnson knows Penguin’s GC will read this letter.

More importantly, here’s how Johnson ended the letter:

I write to formally advise you of your material breach and violation of your agreements, and to inform you that the Department is considering pursuing against you, and all those acting in concert with you, all remedies legally available to us in light of this situation. [my emphasis]

That is, DOD is also considering legal remedies against “those acting in concert” with Bissonnette.

As far as we know, the only people acting in concert with Bissonnette are at Penguin’s imprint of Dutton. Thus, as much as this is a threat to Bissonnette, it’s also a threat to Penguin.

Which would make sense because–as Zaid points out–the government has been trying to push the application of the Espionage Act to those sharing classified information since the AIPAC trial.

Mark Zaid, a lawyer who has represented a variety of former military and intelligence officials in disclosure and leak cases, said the Johnson letter looked like a signal that the Pentagon was “contemplating a test case against the publisher or media for disclosing classified information.”

Read more →

Admiral McRaven: Taxpayers Should Learn about Special Operations from Hollywood Movies

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Most of the coverage of Admiral William McRaven’s letter to the special operations community telling them to shut up has focused on McRaven’s insinuation that the recent flurry of activity stems entirely from a desire for personal or political gain. But I find McRaven’s comments about what forms of publicity about special ops are appropriate just as interesting (thanks to Josh Rogin for linking a copy).

McRaven notes the importance of books on special operations as a learning tool.

Few senior SOF officers have benefited more from reading about the exploits of our legendary heroes than I. My thesis at the Naval Postgraduate School was based on a rigorous examination of the available literature, without which I could never have written my book on “The Theory of Special Operations.”

Most of these books were wonderful accounts of courage, leadership, tough decision making, and martial skill all of which benefited me as I tried to understand of our past and how it could affect missions in the future.

And he suggests that movies “provide public insights into life in special operations … that can’t be garnered anywhere else.”

Movies that portray the heroics of service members are also well worth watching and often provide the public insights into life in special operations or the service that can’t be garnered anywhere else.

Personally, I was motivated to join special operations after watching the movie, “The Green Berets”, starring John Wayne. To this day my Army brethren still wonder where I went wrong…

Countless stories have been told through the medium of film that needed to be told and I am thankful that they were.

Now, I’m grateful that McRaven has criticized OPSEC’s attempt to politicize the Osama bin Laden raid (though it does suggest a double standard). But these comments are rather troubling.

First, note that McRaven’s thesis depends on at least two first person narratives of special ops soldiers–those of Otto Skorzeny and Jonathan Netanyahu (though Netanyahu’s consists of his letters published after his death). So McRaven’s citation of his thesis hardly discredits Matt Bissonnette’s decision to publish his own first person account of his SEAL exploits.

I’m even more troubled by McRaven’s suggestion that we should turn to Hollywood to learn of stories “that need[] to be told.”

One reason he may do so is to legitimize the Administration’s cooperation with the Zero Dark Thirty team. If the Commander of SOCOM suggests Hollywood is the proper venue for special ops stories, it serves to distinguish the Administration’s push for publicity for the Osama bin Laden raid from that of the SEALs. (Though since Bissonnette’s already  shopping his book, I expect McRaven’s position on movies may soon change.)

Of course, in doing so McRaven also suggests that fictional stories are all taxpayers should learn about these “stories that need to be told.” Not just fictional ones, either, but sensational ones. The better to inspire a future head of SOCOM to join the military, just like John Wayne did for McRaven!

Of course, that says taxpayers should only have a false understanding of the wars being fought in their names, which is a profoundly contemptuous view. I have no idea whether Bissonnette’s narrative will be accurate (the Pentagon has gotten a copy and is reading it now, so they may seize it before we get to see). But if it is accurate, why should a Hollywood movie be a more valid telling of the OBL story than the kind of firsthand account McRaven himself has relied upon?

Plus, by endorsing sensational Hollywood narratives, McRaven effectively endorses the kind of special ops hero that would, himself, seek publicity. You can’t have Hollywood serve as the legitimate venue for discussing special operations without feeding the system that would lead a SEAL to want to write his own book and sell the rights to Steven Spielberg. Hollywood created the market for such books; you can’t expect veterans not to feed it.

If the Commander of SOCOM believes the stories of special ops need to be told, then he should declassify them so they can be told in a format that is factual, sober, and complete. This endorsement of Hollywood flicks–while it may serve the Administration’s immediate interests–makes the Administration’s abuse of information asymmetry even worse. It defends not only the Administration getting exclusive control over how to the tell the stories, but suggests it should do so using fictional and sensational means.

Appeals Court Treats Commissary Gatorade Supplies as a “Clear and Present Danger”

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Navy v. Egan–the SCOTUS case Executive Branch officials always point to to claim unlimited powers over classification authority–just got bigger.

Berry v. Conyers extends the national security employment veto over commissary jobs

The original 1988 case pertained to Thomas Egan, who lost his job as a laborer at a naval base when he was denied a security clearance. He appealed his dismissal to the Merit Systems Protection Board, which then had to determine whether it had authority to review the decision to fire him based on the security clearance denial. Ultimately, SCOTUS held that MSPB could not review the decision of the officer who first fired Egan.

The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it.

Unlike Egan, the plaintiffs in this case did not have jobs that required they have access to classified information. Nevertheless, plaintiffs Rhonda Conyers (who was an accounting clerk whose “security threat” pertained to personal debt) and Devon Haughton Northover (who worked in a commissary and also charged discrimination) were suspended and demoted, respectively, when the government deemed them a security risk.

In a decision written by Evan Wallach and joined by Alan Lourie, the Federal Circuit held that the Egan precedent,

require[s] that courts refrain from second-guessing Executive Branch agencies’ national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information.

That is, the Federal government can fire you in the name of national security if you have a “sensitive” job, whether or not you actually have access to classified information.

As Timothy Dyk’s dissent notes, the effect of this ruling is to dramatically limit civil service protections for any position the government deems sensitive, both within DOD–where both Conyers and Northover work–and outside it.

Under the majority’s expansive holding, where an employee’s position is designated as a national security position, see 5 C.F.R. § 732.201(a), the Board lacks jurisdiction to review the underlying merits of any removal, suspension, demotion, or other adverse employment action covered by 5 U.S.C. § 7512.

[snip]

As OPM recognizes, under the rule adopted by the majority, “[t]he Board’s review . . . is limited to determining whether [the agency] followed necessary procedures . . . [and] the merits of the national security determinations are not subject to review.”

In doing so, the dissent continues, it would gut protection against whistleblower retaliation and discrimination.

As the Board points out, the principle adopted by the majority not only precludes review of the merits of adverse actions, it would also “preclude Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees subjected to otherwise appealable removals and other adverse actions.” Board Br. at 35. This effect is explicitly conceded by OPM, which agrees that the agency’s “liability for damages for alleged discrimination or retaliation” would not be subject to review. OPM Br. at 25. OPM’s concession is grounded in existing law since the majority expands Egan to cover all “national security” positions, and Egan has been held to foreclose whistleblower, discrimination, and other constitutional claims.

Tracking Gatorade supplies can now represent a “clear and present danger”

There are a couple of particularly troubling details about how Wallach came to his decision. In a footnote trying to sustain the claim that a commissary employee might be a national security threat, Wallach argues that Northover could represent a threat in the commissary by observing how much rehydration products and sunglasses service members were buying.

The Board goes too far by comparing a government position at a military base commissary to one in a “Seven Eleven across the street.”

[snip]

Commissary employees do not merely observe “[g]rocery store stock levels” or other-wise publicly observable information. Resp’ts’ Br. 20. In fact, commissary stock levels of a particular unclassified item – sunglasses, for example, with shatterproof lenses, or rehydration products – might well hint at deployment orders to a particular region for an identifiable unit. Read more →

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