June 16, 2024 / by 


On The Passing of David Margolis, the DOJ Institution

david-margolis-250David Margolis was a living legend and giant at the Department of Justice. Now he has passed. Just posted is the following from DOJ:

Statements From Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates on the Passing of Associate Deputy Attorney General David Margolis

Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates released the following statements today on the passing of Associate Deputy Attorney General David Margolis, senior-most career employee at the Department of Justice.

Statement by Attorney General Lynch:

“David Margolis was a dedicated law enforcement officer and a consummate public servant who served the Department of Justice – and the American people – with unmatched devotion, remarkable skill and evident pride for more than half a century. From his earliest days as a hard-charging young prosecutor with a singular sense of style to his long tenure as one of the department’s senior leaders, David took on our nation’s most pressing issues and navigated our government’s most complex challenges. To generations of Justice Department employees, he was a respected colleague, a trusted advisor and most importantly, a beloved friend. We are heartbroken at his loss and he will be deeply missed. My thoughts and prayers are with David’s family, his friends and all who loved him.”

Statement by Deputy Attorney General Yates:

“David Margolis was the personification of all that is good about the Department of Justice. His dedication to our mission knew no bounds, and his judgment, wisdom and tenacity made him the “go-to” guy for department leaders for over 50 years. David was a good and loyal friend to all of us, and his loss leaves a gaping hole in the department and in our hearts.”

I am sure Mr. Margolis was a kind, personable and decent chap to those who knew and worked with him. I can be sure because there have been many voices I know who have related exactly that. He was undoubtedly a good family man and pillar of his community. None of that is hard to believe, indeed, it is easy to believe.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

This is no small matter. When DOJ Inspectors General go to Congress to decry the fact that there is an internal protection racket within the Department of Justice shielding even the worst wrongs by Department attorneys, as IG Glen Fine did:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation raising questions about his conduct or the conduct of his senior staff to OPR, an entity reporting to and supervised by the Attorney General and Deputy Attorney General and lacking the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

Said fact and heinous lack of accountability for Justice Department attorneys, not just in Washington, but across the country and territories, is largely because of, and jealously ingrained by, David Margolis. What Glen Fine was testifying about is the fact there is no independent regulation and accountability for DOJ attorneys.

They are generally excluded from the Department IG purview of authority, and it is rare, if ever, courts or state bar authorities will formally review DOJ attorneys without going throughout the filter of the OPR – the Office of Professional Responsibility – within the Department. A protection racket designed and jealously guarded for decades by David Margolis. Even when cases were found egregious enough to be referred out of OPR, they went to…..David Margolis.

In fact, attuned people literally called the OPR the “Roach Motel”:

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

If you want a solid history of OPR, and the malfeasance it and Margolis have cravenly protected going back well over a decade, please go read “The Roach Motel”, a 2009 article in no less an authority than the American Bar Association Journal. It is a stunning and damning report. It is hard to describe just how much this one man, David Margolis, has frustrated public transparency and accountability into the Justice Department that supposedly works for the citizens of the United States. It is astounding really.

As I wrote back in 2010:

But just as there is an inherent conflict in the DOJ’s use of the fiction of the OPR to police itself, so too does David Margolis have issues giving the distinct appearance of impropriety. Who and what is David Margolis? A definitive look at the man was made by the National Law Journal (subscription required):

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car.

“The Cleaner” Mr. Margolis considered himself, while fastidiously sanitizing gross malfeasance and misconduct by DOJ attorneys, all the while denying the American public the disinfectant of sunshine and transparency they deserve from their public servants (good discussion by Marcy, also from 2010).

Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opinedcrushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

So, what did David Margolis do in response to the heinous legal banality of evil John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

So, less than 24 hours in to the passing of The Cleaner, is it too early to engage in this criticism? Clearly other career officials at the DOJ think discussing the pernicious effects of Margolis on accountability and transparency are out of bounds.

I wonder what the late Senator Ted Stevens would say in response to the “too soon” mandate of Steven Bressler? Because thanks to the efforts of The Cleaner Margolis, Stevens died without the public knowing what an unethical and craven, if not downright criminal, witch hunt attorneys in the Department of Justice ran on him. Even after Stevens was long gone from office and dead, there was Margolis “cleaning” it all up to protect his precious Justice Department when even the internal OPR found gross misconduct:

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

Having laid out the above bill of particulars as to David Margolis, I’d like to return to where we started. As I said in the intro, “I am sure Mr. Margolis was a kind, personable and decent chap”. That was not cheap rhetoric, from all I can discern, both from reading accounts and talking to people who knew Mr. Margolis well, he was exactly that. Ellen Nakashima did a fantastic review of Margolis in the Washington Post last year. And, let’s be honest, the man she described is a guy you would love to know, work with and be around. I know I would. David Margolis was a man dedicated. And an incredibly significant man, even if few in the public understood it.

Say what you will, but Mr. Margolis was truly a giant. While I have no issue delineating what appear to be quite pernicious effects of David Margolis’ gargantuan footprint on the lack of accountability of the Department of Justice to the American citizenry, I have some real abiding respect for what, and who, he was as a man. Seriously, read the Nakashima article and tell me David Margolis is not a man you would love to kill some serious beers with by a peaceful lake somewhere.

But David Margolis, both the good and the bad, is gone now. Where will his legacy live? One of our very longtime friends here at Emptywheel, Avattoir, eruditely said just yesterday:

Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

Those words were literally the first I thought of yesterday when I received the phone call David Margolis had passed. They are true and important words that I, and all, need to take heed of more frequently.

David Margolis, it turns out from all appearances and reports, was a complex man. Clearly great, and clearly detrimental, edges to him. So what will his legacy be at the Department of Justice? Will the closing of the Margolis era, and it was truly that, finally bring the institution of the Department into a modern and appropriate light of transparency, accountability and sunshine?

Or will the dirty deeds of David Margolis’ historical ratification and concealment of pervasive and gross misconduct by Department of Justice attorneys become permanently enshrined as a living legacy to the man?

We shall see.

Russ Feingold: Yahoo Didn’t Get the Info Needed to Challenge the Constitutionality of PRISM

The NYT has a story that solves a question some of us have long been asking: Which company challenged a Protect America Act order in 2007, only to lose at the district and circuit level?

The answer: Yahoo.

The Yahoo ruling, from 2008, shows the company argued that the order violated its users’ Fourth Amendment rights against unreasonable searches and seizures. The court called that worry “overblown.”

But the NYT doesn’t explain something that Russ Feingold pointed out when the FISA Court of Review opinion was made public in 2009 (and therefore after implementation of FISA Amendments Act): the government didn’t (and still didn’t, under the PAA’s successor, the FISA Amendments Act, Feingold seems to suggests) give Yahoo some of the most important information it needed to challenge the constitutionality of the program.

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access. The court upheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process. The court concluded that “[t]he record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.” However, the company did not have access to all relevant information, including problems related to the implementation of the PAA. Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

In the absence of specific complaints from the company, the court relied on the good faith of the government. As the court concluded, “[w]ithout something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillance) is other than their stated purpose… The petitioner suggests that, by placing discretion entirely in the hands of the Executive Branch without prior judicial involvement, the procedures cede to that Branch overly broad power that invites abuse. But this is little more than a lament about the risk that government officials will not operate in good faith.” One example of the court’s deference to the government concerns minimization procedures, which require the government to limit the dissemination of information about Americans that it collects in the course of its surveillance. Because the company did not raise concerns about minimization, the court “s[aw] no reason to question the adequacy of the minimization protocol.” And yet, the existence of adequate minimization procedures, as applied in this case, was central to the court’s constitutional analysis. [bold original, underline mine]

This post — which again, applies to PAA, though seems to be valid for the way the government has conducted FAA — explains why.

The court’s ruling makes it clear that PAA (and by association, FAA) by itself is not Constitutional. By itself, a PAA or FAA order lacks both probable cause and particularity.

The programs get probable cause from Executive Order 12333 (the one that John Yoo has been known to change without notice), from an Attorney General assertion that he has probable cause that the target of his surveillance is associated with a foreign power.

And the programs get particularity (which is mandated from a prior decision from the court, possibly the 2002 one on information sharing) from a set of procedures (the descriptor was redacted in the unsealed opinion, but particularly given what Feingold said, it’s likely these are the minimization procedures both PAA and FAA required the government to attest to) that give it particularity. The court decision makes it clear the government only submitted those — even in this case, even to a secret court — ex parte.

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case.

In other words, even the court ruling makes it clear that Yahoo saw only generalized descriptions of these procedures that were critical to its finding the order itself (but not the PAA in isolation from them) was constitutional.

Incidentally, while Feingold suggests the company (Yahoo) had to rely on the government’s good faith, to a significant extent, so does the court. During both the PAA and FAA battles, the government successfully fought efforts to give the FISA Court authority to review the implementation of minimization procedures.

The NYT story suggests that the ruling which found the program violated the Fourth Amendment pertained to FAA.

Last year, the FISA court said the minimization rules were unconstitutional, and on Wednesday, ruled that it had no objection to sharing that opinion publicly. It is now up to a federal court.

I’m not positive that applies to FAA, as distinct from the 215 dragnet or the two working in tandem.

But other reporting on PRISM has made one thing clear: the providers are still operating in the dark. The WaPo reported from an Inspector General’s report (I wonder whether this is the one that was held up until after FAA renewal last year?) that they don’t even have visibility into individual queries, much less what happens to the data once the government has obtained it.

But because the program is so highly classified, only a few people at most at each company would legally be allowed to know about PRISM, let alone the details of its operations.


According to a more precise description contained in a classified NSA inspector general’s report, also obtained by The Post, PRISM allows “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” rather than directly to company servers. The companies cannot see the queries that are sent from the NSA to the systems installed on their premises, according to sources familiar with the PRISM process. [my emphasis]

This gets to the heart of the reason why Administration claims that “the Courts” have approved this program are false. In a signature case where an Internet provider challenged it — which ultimately led the other providers to concede they would have to comply — the government withheld some of the most important information pertaining to constitutionality from the plaintiff.

The government likes to claim this is constitutional, but that legal claim has always relied on preventing the providers and, to some extent, the FISA Court itself from seeing everything it was doing.

Lamar Smith’s Futile Leak Investigation

Lamar Smtih has come up with a list of 7 national security personnel he wants to question in his own leak investigation. (h/t Kevin Gosztola)

House Judiciary Committee Chairman Lamar Smith, R-Texas, told President Obama Thursday he’d like to interview seven current and former administration officials who may know something about a spate of national security leaks.


The administration officials include National Security Advisor Thomas Donilon, Director of National Intelligence James Clapper, former White House Chief of Staff Bill Daley, Assistant to the President for Homeland Security and Counterterrorism John Brennan, Deputy National Security Advisor Denis McDonough, Director for Counterterrorism Audrey Tomason and National Security Advisor to the Vice President Antony Blinken.

Of course the effort is sure to be futile–if Smith’s goal is to figure out who leaked to the media (though it’ll serve its purpose of creating a political shitstorm just fine)–for two reasons.

First, only Clapper serves in a role that Congress has an unquestioned authority to subpoena (and even there, I can see the Intelligence Committees getting snippy about their turf–it’s their job to provide impotent oversight over intelligence, not the Judiciary Committees).

As for members of the National Security Council (Tom Donilon, John Brennan, Denis McDonough, Audrey Tomason, and Antony Blinken) and figures, like Bill Daley, who aren’t congressionally approved? That’s a bit dicier. (Which is part of the reason it’s so dangerous to have our drone targeting done in NSC where it eludes easy congressional oversight.)

A pity Republicans made such a stink over the HJC subpoenaing Karl Rove and David Addington and backed Bush’s efforts to prevent Condi Rice from testifying, huh?

The other problem is that Smith’s list, by design, won’t reveal who leaked the stories he’s investigating. He says he wants to investigate 7 leaks.

Smith said the committee intends to focus on seven national security leaks to the media. They include information about the Iran-targeted Stuxnet and Flame virus attacks, the administration’s targeted killings of terrorism suspects and the raid which killed Usama bin Laden.

Smith wants to know how details about the operations of SEAL Team Six, which executed the bin Laden raid in Pakistan, wound up in the hands of film producers making a film for the president’s re-election. Also on the docket is the identity of the doctor who performed DNA tests which helped lead the U.S. to bin Laden’s hideout.

But his list doesn’t include everyone who is a likely or even certain leaker.

Take StuxNet and Flame. Not only has Smith forgotten about the programmers (alleged to be Israeli) who let StuxNet into the wild in the first place–once that happened, everything else was confirmation of things David Sanger and security researchers were able to come up with on their own–but he doesn’t ask to speak to the Israeli spooks demanding more credit for the virus.

Then there’s the Osama bin Laden raid, where Smith has forgotten two people who are almost certainly part of the leak fest: Ben Rhodes and Brigadier General Marshall Webb.

Smith’s inclusion of Shakeel Afridi’s plight here is downright ridiculous. It’s fairly clear the first leaks about Afridi’s role in the OBL operation came from the ISI, with reporting originally published in the UK, not the US. The source for confirmation that Afridi was working for the CIA? Well, if Lamar Smith and his staffers can’t negotiate a TV remote or an internet search to find Leon Panetta confirming Afridi’s role on TV, then they have no business serving in an oversight role, period. And yet Panetta’s not on Smith’s list.

Smith also wants to know who leaked details of the UndieBomb 2.0 plot. Well, he better start subpoenaing some Yemeni and Saudi–and even British–partners, then, because they were all part of the leak.

Finally, there are the various drone targeting stories. What Smith seems not to get is that the Kill List stories were responses to earlier stories on signature strikes and Brennan’s grasp of targeting under NSC. Those leaks almost certainly did not arise from the White House; if I had to guess, they came from folks in JSOC who are miffed about losing a turf battle. Yet they, too, are not on the list. And all that’s before you consider that CIA did not report a leak on, at least, the later targeted killing stories, suggesting the possibility that they’re not leaks at all, but myths told to the American public.

All that, of course, is before you get to the circumstance that Republicans fiercely defended during the Plame investigation: for original classification authorities–and the Vice President if pixie dust has been liberally applied–can unilaterally declassify whatever the fuck they feel like, leak it to select journalists, and then start wars or end careers on it. All with no paperwork, making it hard to prosecute either the legitimate instadeclassifications as well as the illegal ones. Lamar Smith had absolutely no problem with that unacceptable state of affairs five years ago. Now, it turns his entire witch hunt into a farce.

So either Lamar Smith is going to need to find a way to undo all the precedent on executive prerogative on secrecy he and his party set under the Bush Administration–as well as find a way to start subpoenaing our allies–or this entire effort is futile.

Unless, of course, this is all about election year posturing.

Extrajudicial Execution of Samir Khan Arguably More Significant Than Awlaki

By this time in the day, the early morning report of the killing of Anwar Awlaki is old news. From ABC News:

Senior administration officials say that the U.S. has been targeting Awlaki for months, though in recent weeks officials were able to pin down his location.

“They were waiting for the right opportunity to get him away from any civilians,” a senior administration official tells ABC News.

And today they got him. Awlaki was killed by a drone delivered Hellfire missile, via a joint CIA and JSOC operation, in the town of Kashef, in Yemen’s Jawf province, approximately 140 kilometres east of Sanaa, Yemen’s capital. But not only Awlaki was killed, at least three others, including yet another American citizen, Samir Khan, were killed in the strike.

That’s right, not just one, but two, Americans were summarily and extrajudicially executed by their own government today, at the direct order of the President of the United States. No trial, no verdict, just off with their heads. Heck, there were not even charges filed against either Awlaki or Khan. And it is not that the government did not try either, there was a grand jury convened on Khan, but no charges. Awlaki too was investigated for charges at least twice by the DOJ, but non were found.

But at least Awlaki was on Barrack Obama’s “Americans That Are Cool to Kill List”. Not so with Samir Khan. Not only is there no evidence whatsoever Khan is on the classified list for killing (actually two different lists) my survey of people knowledgeable in the field today revealed not one who believed khan was on any such list, either by DOD or CIA.

So, the US has been tracking scrupulously Awlaki for an extended period and knew with certainty where he was and when, and knew with certainty immediately they had killed Awlaki and Khan. This means the US also knew, with certainty, they were going to execute Samir Khan.

How did the US then make the kill order knowing they were executing a US citizen, not only extrajudicially, but not even with the patina of being on the designated kill list (which would at least presuppose some consideration and Yoo-like pseudo-legal cover)?

Did Barack Obama magically auto-pixie dust Khan onto the list with a wave of his wand on the spot? Even under the various law of war theories, which are not particularly compelling justification to start with as we are not at war with Yemen and it is not a “battlefield”, the taking of Khan would appear clearly prohibited under both American and International law. As Mary Ellen O’Connell, vice chairman of the American Society of International Law, relates, via Spencer Ackerman at Wired’s Dangerroom:

“The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

O’Connell’s argument turns on the question of whether the U.S. is legally at war in Yemen. And for the administration, that’s a dicey proposition. The Obama administration relies on the vague Authorization to Use Military Force, passed in the days after 9/11, to justify its Shadow Wars against terrorists. Under its broad definition, the Authorization’s writ makes Planet Earth a battlefield, legally speaking.

But the Authorization authorizes war against “nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” It’s a stretch to apply that to al-Qaida’s Yemen affiliate, which didn’t exist on 9/11. But when House Republicans tried to re-up the Authorization to explicitly bless the new contours of the war against al-Qaida, the Obama administration balked, fearing the GOP was actually tying its hands on the separate question of terrorist detentions.

“It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life,” O’Connell continues. “In armed conflict, a privileged belligerent may use lethal force on the basis of reasonable necessity. Outside armed conflict, the relevant standard is absolute necessity.”

So did al-Awlaki represent an “absolute” danger to the United States? President Obama, in acknowledging Awlaki’s death on Friday morning, didn’t present any evidence that he did.

And therein lies lies the reason the US killing of Samir Khan may be even more troubling than the already troubling killing of al-Awlaki. There is no satisfactory legal basis for either one, but as to Khan there was NO process whatsoever, even the joke “listing” process utilized for Awlaki. The US says it took care to not harm “civilians”, apparently that would mean Yemeni civilians. American citizens are fair game for Mr. Obama, list or no list, crime or no crime, charges or no charges. Off with their heads!

People should not just be evaluating today’s fresh kills as to Awlaki, Samir Khan should be at the tip of the discussion spear too.

The Assassination Squads: Two Points

Siobhan Gorman reports that the secret program that Leon Panetta just revealed to Congress is an assassination squad.

A secret Central Intelligence Agency initiative terminated by Director Leon Panetta was an attempt to carry out a 2001 presidential authorization to capture or kill al Qaeda operatives, according to former intelligence officials familiar with the matter.

The precise nature of the highly classified effort isn’t clear, and the CIA won’t comment on its substance.

According to current and former government officials, the agency spent money on planning and possibly some training. It was acting on a 2001 presidential legal pronouncement, known as a finding, which authorized the CIA to pursue such efforts. The initiative hadn’t become fully operational at the time Mr. Panetta ended it.

In 2001, the CIA also examined the subject of targeted assassinations of al Qaeda leaders, according to three former intelligence officials. It appears that those discussions tapered off within six months. It isn’t clear whether they were an early part of the CIA initiative that Mr. Panetta stopped.

Two comments about this.

First, there must be something more. Aside from the near ubiquitous drone strikes, which seem to be fully acknowledged and non-controversial, there have been enough personal strikes against al Qaeda figures that appear likely to have been assassinations, that for all intents and purposes, it appears we are assassinating al Qaeda figures.

It may be, for example, that the conflict reported by Sy Hersh is the problem–that Special Ops has the mandate to kill but CIA is being dragged into those assassinations.

Senior Democrats in Congress told me that they had concerns about the possibility that their understanding of what the new operations entail differs from the White House’s. One issue has to do with a reference in the Finding, the person familiar with it recalled, to potential defensive lethal action by U.S. operatives in Iran. (In early May, the journalist Andrew Cockburn published elements of the Finding in Counterpunch, a newsletter and online magazine.)

The language was inserted into the Finding at the urging of the C.I.A., a former senior intelligence official said. The covert operations set forth in the Finding essentially run parallel to those of a secret military task force, now operating in Iran, that is under the control of JSOC. Under the Bush Administration’s interpretation of the law, clandestine military activities, unlike covert C.I.A. operations, do not need to be depicted in a Finding, because the President has a constitutional right to command combat forces in the field without congressional interference. But the borders between operations are not always clear: in Iran, C.I.A. agents and regional assets have the language skills and the local knowledge to make contacts for the JSOC operatives, and have been working with them to direct personnel, matériel, and money into Iran from an obscure base in western Afghanistan. As a result, Congress has been given only a partial view of how the money it authorized may be used. One of JSOC’s task-force missions, the pursuit of “high-value targets,” was not directly addressed in the Finding. There is a growing realization among some legislators that the Bush Administration, in recent years, has conflated what is an intelligence operation and what is a military one in order to avoid fully informing Congress about what it is doing.

“This is a big deal,” the person familiar with the Finding said. “The C.I.A. needed the Finding to do its traditional stuff, but the Finding does not apply to JSOC. The President signed an Executive Order after September 11th giving the Pentagon license to do things that it had never been able to do before without notifying Congress. The claim was that the military was ‘preparing the battle space,’ and by using that term they were able to circumvent congressional oversight. Everything is justified in terms of fighting the global war on terror.” He added, “The Administration has been fuzzing the lines; there used to be a shade of gray”—between operations that had to be briefed to the senior congressional leadership and those which did not—“but now it’s a shade of mush.”

“The agency says we’re not going to get in the position of helping to kill people without a Finding,” the former senior intelligence official told me.

But even that can’t be it. While the conflict Hersh reported pertained to Iran, not al Qaeda, Congress clearly knows about this conflict–they’ve even drafted legislation to curb it. Nevertheless, you’d think that if Congress saw this going on with regards to Iran, it’d worry them more than the same practice going on with al Qaeda.

Second, just to pre-empt the inevitable discussion of "law" every time this comes up. Yes, EO 12333 still appears to ban assassinations.

No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

But EO 12333 is precisely the Executive Order that Sheldon Whitehouse invoked in 2007 when he revealed that Bush got an OLC opinion stating he could change EOs without changing the EO–what I call pixie dust.

Here’s what–according to Whitehouse, who after all ought to know–Bush believes about whether or not he has to follow EO 12333, an Executive Order signed by Saint Reagan.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." And he doesn’t have to change the executive order, or give notice that he’s violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."

So for those who will, inevitably, immediately invoke EO 12333 in arguing that assassination is "illegal," please do your homework. EO 12333 apparently prohibits assassinations, but there’s no way we can guarantee that Bush didn’t pixie dust the EO back in 2001 when he set up his little assassination squad. Furthermore, an EO is just that, an EO, one that a President can change at will without even publicly informing Congress or the American people. While it counts as law for the Executive Branch, it is not the same as a law passed by Congress, and treating it as if it is is simple foolishness at this point.

I assume we’ll learn more about this in coming days. But thus far, I’m not convinced this is the whole of the story yet.

Update: Okay, the WaPo explains that it’s not the assassinations themselves, it’s technical capability to make assassinations easier.

The program began shortly after the Sept. 11, 2001, attacks and was authorized by Bush as part of a highly classified directive on Sept. 26 of that year. The directive granted the CIA blanket authority to attempt to kill or capture al-Qaeda operatives.

Former intelligence officials said the program was aimed at enhancing the agency’s ability to carry out the goals of the directive.

Note the date, too. The presidential finding that enabled CIA to capture and keep Al Qaeda members was signed September 17, 2001. So this is a follow-up to that one, it appears.

Also, consider this recent reporting from Wired.

American drone strikes are finding their targets in Pakistan through a series of infrared homing beacons, Al Qaeda alleges in a new online publication.

The American and Pakistani intelligence services credit U.S. unmanned aircraft with decimating the ranks of terrorist and insurgent operatives in Pakistan. “Very frankly, it’s the only game in town in terms of confronting and trying to disrupt the Al Qaeda leadership,” CIA director Leon Panetta said in May. The unmanned aircraft have supposedly carried out 28 attacks on suspected militants, just since the start of the year. Hundreds have been killed, including as many as 45 more people in a series of strikes today.

But how the killer drones find their targets has been a matter of some dispute. Local Taliban commander Mullah Nazir, himself an occasional target, says they’re guided by SIM cards, installed in militant cell phones. Area tribesman talk of homing devices, planted by informants, that are capable of signaling American aircraft. In The Ruling Concerning Muslims Spies, an internet-distributed book written by self-styled theologian and emerging Al Qaeda leader Abu Yahya al-Libi, warns readers of American infrared devices which he claims directs the attacks on Al Qaeda and its allies.

“These result in the firing of the murderous and destructive missiles whose wrath is inflicted on the Mujahedeen and the weak,” he writes. Then he provides “photos of some of the devices the spies painstakingly transport to the targets they are assigned by their infidel patrons.”

The pictures of the “chips with 9 volt batteries” provided in the book (see photo, above) bear a sharp resemblance to the Phoenix and Pegasus models of infrared flashing beacons made by Cejay Engineering. The devices are used by the U.S. military, among others, to identify friend from foe, mark drop zones, and outline perimeters.

Now, I don’t think these beacons are the big secret thing. But I think the big secret might be something similar to this–a technical toy that would make it easier to conduct drone attacks or the like.

Change Pixie Dust We Can Believe In

Apparently, Greg Craig (who IMHO thus far is batting about 0-3 in his tenure as White House Counsel, counting his erroneous response on FISA, his juvenile cover-up of Rahm’s calls, and his response to the botched Oath) believes in Pixie Dust.

A day before Obama signed executive orders closing Guantánamo Bay and banning torture, the White House’s top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president’s) executive orders. In a closed-door appearance before the Senate intelligence committee, White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the administration did not believe he was. The implication: in a national-security crisis, Obama could deviate from his own rules. A White House official said that Craig’s remarks were being "mischaracterized." [my emphasis]

Note Craig said this in response to a question–presumably from one of the Senators. As a reminder, both Sheldon Whitehouse and Russ Feingold sit on the SSCI. They’re the two guys trying to legislate away this kind of Pixie Dust, the claim that the President can just ignore his own executive orders. Whitehouse, of course, is the guy who first pointed out the way Bush had used Pixie Dust to wish away Saint Ronnie’s prohibitions on spying on Americans. And Whitehouse asked this very question of Michael Mukasey before he was confirmed, only to have Mukasey flip-flop on it as Attorney General. 

So I’m guessing that the question, at least, was asked by Whitehouse with Feingold the second most probable.

Someone ought to tell Mr. Greg "0-4" Craig, though, that once you espouse Pixie Dust you’ve lost all credibility to claim your remarks were "mischaracterized." 

Whitehouse and Feingold Strike Back at Pixie Dust

Pixie Dust, as I’ve explained it, is the process by which the Bush White House has relied upon an OLC opinion stating that the President doesn’t have to rewrite his Executive Orders before he violates it. If he acts contrary to an Executive Order, that constitutes "modifying" the order, even if he never publicly changes the order. Hell, apparently in this White House, the VP could make up his own interpretations of Executive Orders, even if the White House Counsel told him he was wrong.

Uh huh.

Sheldon Whitehouse and Russ Feingold think that whole concept is as ridiculous as we think it is–and they’ve just sponsored a bill to end the practice.

U.S. Senators Russ Feingold (D-WI) and Sheldon Whitehouse (D-RI) have introduced legislation to prohibit the President from relying on one form of “secret law.” The Feingold-Whitehouse bill would require public notice when the President modifies, revokes, waives, or suspends a published executive order or similar Presidential directive that carries the force of law and binds the Executive Branch. The legislation responds to a legal opinion of the Department of Justice’s Office of Legal Counsel which concludes that a President can modify or waive an executive order without public notice, simply by not following it. This legal conclusion by OLC was made public in December 2007 through the efforts of Whitehouse and examined at an April 30th hearing of the Senate Judiciary Committee Constitution Subcommittee on the subject of “Secret Law” chaired by Feingold.

“No one disputes a President’s ability to withdraw or revise an Executive Order,” Feingold said. “But modifying or even throwing out a published Executive Order without any public notice is a way of secretly changing the law. And since the Executive Order stays on the books, Congress and the public are misled about what the real law is. This bill is an important step toward stemming the growth of secret law in the executive branch.”

“The Bush Administration’s relentless efforts to conduct government in secret have undermined the rule of law and too often betrayed the trust of the American people,” said Whitehouse, a former Rhode Island U.S. Attorney and Attorney General who first made OLC’s conclusion public. “This measure will help restore the rule of law, disciplined by the balance of power established under the Constitution.”

The bill, called the Executive Order Integrity Act, would require notice to be published in the Federal Register 30 days after the President revokes, modifies, waives, or suspends a published Executive Order. The notice would identify the Executive Order or portions thereof that were affected; whether the change that occurred was a revocation, modification, waiver, or suspension; and the nature and circumstances of the change.

"Executive Order Integrity Act"? That’s not very colorful. I wonder if it’s too late to get them to rename it the "Pixie Dust Prevention Act"?

Mukasey Flip Flops on Pixie Dust

Back during Michael Mukasey’s confirmation hearings, Sheldon Whitehouse got Michael Mukasey to commit that, when a President changes an executive order, he appropriately should actually change the executive order–so schmoes like you and I can know what the President is actually doing.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

A few months later, we learned why Whitehouse had asked Mukasey the question–because Bush was claiming that he didn’t need to change his own executive orders, specifically EO 12333–which Americans would have believed protected them against wiretapping when they were overseas.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." And he doesn’t have to change the executive order, or give notice that he’s violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

To Whitehouse’s credit, the sole improvement in today’s FISA bill–among a bunch of gifts to the unitary executive and total surveillance society–codified the part of EO 12333 that had ensured that Americans traveling abroad would not be wiretapped, so Bush couldn’t just make it disappear without telling us.

But still, Mukasey said he thought the President should change an EO when he wanted to ignore it. Yet–after we learned subsequently that Bush wasn’t doing that, that he had changed at least one executive order without telling us (and by golly, would you believe it’s an executive order that pertains to our civil liberties?)–all of a sudden Michael Mukasey is defending the Executive Privilege to Pixie Dust.

Whitehouse: Attorney General, I’d like to talk with you a little about Executive Orders. Executive Orders often govern particularly serious matters. In my role on the Intelligence and Judiciary Committees, I’ve been exposed to 12333, which is the one that purported to protect Americans when they traveled overseas from being wiretapped by their government. That one is about to be overtaken by the FISA bill whose vote begins very shortly. Another one is 13440–which is the executive order that is intended to establish minimum standards for the appropriate treatment of alien detainees consistent with the Geneva Conventions. This executive order has been criticized by JAG for all branches of the armed services, but it is the executive order on which the Administration reliesin indicating that it has "clear rules" is the Administration’s phrase for detainee treatment and interrogations that must be done with "safeguards under US law" which I view is in part about this executive order. Now, you and I have had exchanges about EOs in your nomination, I indicated, you indicated, should an executive order apply to President and he determines it should be modified, the appropriate course would be to issue a new order, or amend the prior order. And I think that is an accurate statement–I happen to agree with that. What concerns me, to take us back to our favorite place, OLC again, is that during my review of the OLC opinions I came across the following … opinion of the Department of Justice by OLC.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

Is that rule still in force? And if that is the case, can President disregard executive order 13440 regarding the treatment of detainees, without amendment of information to Congress or the American people?

Mukasey: I think it’s important, or at least useful, to analyze what the nature is of an executive order. An executive order is a direction by the President that the Executive conduct itself in a certain way. The President is free to change that order on his view of how the Executive should behave.

Whitehouse: Any time he wants … [overtalk] The question is, can he leave an executive order in place and act in violation or derogation of it without ever going back and changing it just because he’s the President?

Mukasey: It’s not a violation of it, um, it is his order, or an executive order to start with. I can imagine circumstances, in which it would be not only possible, but advisable for a President not to change an EO when he finds out information that directs the government should go in another direction. For example, if an EO directed that a particular country be treated as not violative of certain norms and therefore eligible of certain privileges and he came by classified information that told him otherwise, he would be obligated, it seems to me, to reimpose those restrictions on that country. It would be inadvisable for him to file an amended executive order and put them on notice that he had come into possession of that classified information.

Whitehouse: Ever?

Mukasey: I beg your pardon?

Whitehouse: Ever?

Mukasey: It would be inadvisable …

Whitehouse: I can understand there are timing considerations, something that happened rather suddenly.

Mukasey: If there comes a time when it becomes advisable and possible, then it’s advisable and possible. It may never be possible.

Whitehouse: So, I conclude from your answer that the existence of EO 13440 can give us no assurance that the President is actually complying with it.

Mukasey: I think that the existence of 440–EO 13440–suggests the President is complying with it.

Whitehouse: Suggests, but can give us no assurance.

Mukasey: The President is–having issued an order–is free to issue contrary directions.

Whitehouse: So, the answer to my question is yes. It can give us no assurance that the President is following it.

Mukasey: I think your question suggests a level of uncertainty that, with due respect, is unwarranted in this situation that you mention.

Whitehouse: Well, a lot of things that we were concerned were unwarranted appear to have come true, so, here we are. But I think it’s important to pin it down, because the question of how we treat detainees is significant, and if 1344o doesn’t, in fact, protect us, then it’s important for us to know in Congress–it’s one of the reasons I think the FISA statute is so important is that it repairs the limit of 12333.

I like that bit: "Ever?" "I beg your pardon?" Comedy gold.

What Mukasey’s rather malleable position amounts to, though, is "trust us." He suggests we can read Bush EOs and somehow discern which ones–like EO 12333 governing intelligence activities and EO 13292 governing classification, declassification, and insta-declassification–Bush has decided to ignore modify without telling us. Whereas there are others–specifically 13440, torture, an area that Bush would prefer to avoid further legislation on–for which Mukasey believes we, and the international community, can just assume–because of its very existence!!!!–the President actually follows.

"Suggests." That’s what the rule has become under George Bush, his buddy Mukasey, and their intoxicating Pixie Dust. Those written instructions? It’s enough that they "suggest" what a President will do.

The Yoo “Exclusivity” Opinion: More Outrageous Hackery

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:

The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.

Then, after ignoring the question of whether Yoo’s interpretation of "reasonably possible" was itself reasonable, Benczkowski went on to stress that DOJ gave up Yoo’s opinion in 2006 and replaced it with more hackery.

However, as you are aware from a review of the Department’s relevant legal opinions concerning the NSA’s warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. Rather, the Department’s more recent analysis of the relation between FISA and the NSA’s surveillance activities acknowledged by the President was summarized in the Department’s January 19,2006 white paper (published before those activities became the subject of FISA orders and before enactment of the Protect America Act of 2007). As that paper pointed out, "In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland."

As he did with Yoo’s opinion, Benczkowski also ignored the question of whether this claim–that the AUMF authorized Bush to ignore FISA’s exclusivity provision–was reasonable, particularly when Tom Daschle, who was Senate Majority Leader when the AUMF was passed, insists that Congress specifically refused to give the President war powers within the US.

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Pretty much, Benczkowski is stuck in the unenviable position of trying to claim the warrantless wiretap program was legal, when it clearly wasn’t. He ends his letter with a pathetic plea to the Senators not to circulate Yoo’s interpretation of exclusivity by itself.

Accordingly, we respectfully request that if you wish to make use of the 2001 statement in public debate, you also point out that the Department’s more recent analysis of the question is reflected in the passages quoted above from the 2006 white paper.

As if that makes ongoing DOJ hackery defensible.

Just Making It Up on Classification

A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.


Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. He lists the several ways in which the classification of the memo violates the guidelines for classification (much of which he had already explained–as noted in this post).

  • The original classifier of the memo was not identified
  • The original classifier may not be one of the 4000 people authorized to classify information
  • The memo lacked declassification instructions
  • The memo lacked an explanation for why it was classified
  • The memo did not indicate which portions of the memo were classified and which were unclassified
  • DOD declassified a memo apparently originally classified by DOJ

But it was not just the original classifier and eventual declassifier that violated the written rules on classification. So did Jim Haynes, Alberto Gonzales, and David Addington.

In addition, the memo was addressed to the most senior legal official within the DoD and was reportedly shared with some of the most senior officials in the Executive branch, including the then White House Counsel as well as the then Counsel to the Vice President. Like all people with a security clearance, per the President’s direction in the governing Executive Order, each of these government officials had the affirmative responsibility to challenge the inappropriate classification of information.


… the President’s governing Executive Order makes it abundantly clear that people who "classify or continue the classification of information in violation of [the] order or any implementing directive … shall be subject to sanctions … [to] include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions…" There is no evidence to suggest that such sanctions have been imposed in this instance. Failure to apply sanctions makes it increasingly difficult to preserve the integrity and credibility of the classification system, a process that is an essential national security tool. [first ellipsis mine, remaining brackets and ellipses original]

If the Scooter Libby trial taught us anything (aside from the fact that Dick Cheney apparently ordered Libby to expose a CIA spy), it’s that the Administration is not going to punish its own for violating rules on classification and declassification.

But Leonard’s statement goes on to illustrate the fundamental hypocrisy of the Administration when it comes to classification. Leonard points out (as I also did) that all these fancy Administration lawyers violated the EO on classification they were writing even as they were improperly classifying the Yoo Torture Memo.

What is most disturbing is that at the exact time these officials were writing, reviewing, and being briefed on the classified nature of this memorandum, they were also concurring with the President’s reaffirmation of the standards for proper classification, which was formalized the week after the OLC memo was issued when the President signed his amended version of the Executive Order governing classification.

Leonard is too polite to say it, but basically the Administration was reiterating rules about classification for others that they had absolutely no intent of following themselves.

Such rank hypocrisy is only possible when you’ve got a lackey like John Yoo around to do your dirty business. As Leonard also points out, this improperly classified memo happened to be written by the same people who were responsible for interpreting that same EO on classification.

What is equally disturbing is that this memo was not some obscure, meaningless document written by a low-level bureaucrat who did not know any better and had inadequate supervision. Rather, the memo was written by the Deputy of the OLC, the very entity which has the responsibility to render interpretations of all Executive Orders, a responsibility that includes interpretating the governing order that distinguishes between the proper and improper classification of information.

Now I don’t yet have proof that Bush’s top lawyers formally used Pixie Dust to exempt themselves from the EO on classification even while they were writing it. Or whether they just don’t care, whether they simply believe that rules are for other people and it doesn’t matter what rationale they invent for ignoring their own rules, they’ll find some way to squirm out of responsibility just as they did with the CIA Leak.

But one thing is clear. No one should accept a memo on classification from George Bush as anything more than a bunch of hypocritical posturing. This President doesn’t give a damn what happens to information so long as he can selectively expose or hide information in ways that hurt his political enemies and hide his own law-breaking.

Update: transcription error fixed per MarkusQ

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