The new language reveals a bit more about what Alberto Gonzales included in his March 11, 2004 authorization that led Jim Comey to renew his resignation threat on March 16, 2004. And it reiterates a detail about the March 19, 2004 modification I’ve covered repeatedly (though leaves the other at least two March 19, 2004 modifications, as well as the April 2 one(s), entirely redacted).
One thing that did get changed on March 19 — the exclusion of the Iraq targeting John Yoo had authorized in 2003 — is now unredacted. That language only permits the use of Stellar Wind with al Qaeda, groups affiliated with al Qaeda, or “another group that [the President determines] for the purposes of this Presidential Authorization is in armed conflict with the United States and poses a threat of hostile action within the United States.” This language is precisely consistent with language in the May 6, 2004 Jack Goldsmith opinion I’ve noted before — indeed, the newly unredacted language appears unredacted in that memo (see page 16). Goldsmith situates the broader-than-al Qaeda authorization, in part, in this language in the 2001 AUMF.
The Congressional Authorization contains another provision that is particularly significant in this context. Congress expressly recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United Stales.” Congressional Authorization, pmbl. That provision gives express congressional recognition to the President’s inherent constitutional authority to take action to defend the United States even without congressional support.
Note, Savage misstates that the change only permits targeting “Al Qaeda, rather than allowing it to be used for other types of international counterterrorism investigations,” ignoring that the President (and Goldsmith’s subsequent OLC memo) permitted the inclusion of other international terrorist groups. That may reflect reporting that will show up in his book, but the language adopted pursuant to DOJ complaints, both in the March 19 authorization and in Goldsmith’s memo, clearly permits targeting of more than just al Qaeda at the President’s prerogative, so long as it actually has to do with “international” terrorism (Goldsmith distinguishes international terrorism from domestic in an effort to comply with the Supreme Court Keith decision, but not in a way that I believe to be adequate in logic or, since Goldsmith’s opinion, implementation).
We don’t know whether two other things newly revealed to be in the March 11, 2004 memo got changed, because we don’t see the other March 19 modifications.
First, Gonzales explicitly asserted in the March 11 authorization that Article II authority “displace[s] the provisions of law, including the Foreign Intelligence Surveillance Act and chapter 119 of Title 18 of the United States Code (including 18 U.S.C. §2511(f) relating to exclusive means), to the extent any conflict between provisions and such exercises under Article III.” This idea may have been tweaked in one of the modifications, given that Goldsmith’s memo largely provides an explanation for how FISA got displaced via the AUMF, but I also suspect that, even as problematic as Goldsmith’s memo is, it was probably stronger than any modifications before he issued the memo.
Far more interesting is the language Gonzales included in the March 11 authorization designed to retroactively authorize the bulk collection of entirely domestic metadata. It did so by claiming that metadata “is ‘acquired’ for the purposes of subparagraph 4(b) above when, and only when, the Department of Defense has searched for and retrieved such header/router/addressing-type information, … and not when the Department obtains such header/routing/addressing-type information.” Effectively, that March 11 authorization — and Gonzales’ effort to pretend they hadn’t been violating the law for 3 years — is the source of the Orwellian definition of “collect” that James Clapper relied on when caught in his lies about dragnets. There is a great deal in Goldsmith’s opinion on metadata that remains redacted, so Goldsmith may well have amended this formula. And I think FISC operates with a more reasonable definition of “collect” than the IC does (which ought to be a problem!). But some version of that definition covers probably even more invasive spying of US persons under SPCMA, and that language and logic was always withheld from FISC. My strong suspicion is that Goldsmith did change this. I even think it remotely possible that the scope of SPCMA has been modified since James Baker became FBI General Counsel.
Regardless of whether that definition was reined in in the modifications and/or Goldsmith’s memo, however, that’s still the way the government thinks.
Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).
The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.
Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.
Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.
That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.
Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.
First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.
Boy how wrong was I. Boy how inadequately cynical was I.
Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.
Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:
It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.
Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?
In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.
On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.
Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.
Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.
By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.
If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.
Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.
I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).
A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.
The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.
I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.
One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.
On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.
Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.
This appears to have led directly to Comey drafting his resignation letter.
But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).
Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]
I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).
The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.
And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.
But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.
Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.
That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.
Footnote 147 of the DOJ IG Report on Stellar Wind (PDF 462-3) modifies a discussion of the discussions on March 6 and 7, 2004 in which Jack Goldsmith and Patrick Philbin informed David Addington and Alberto Gonzales that they could not reauthorize Stellar Wind — in spite of applying a relaxed standard of review — because the White House wanted them to affirm that John Yoo’s November 2, 2001 memo had covered the program, yet Yoo’s memo had not included all aspects of it (this likely pertains to the collection of Internet metadata from telecom switches, though it may also pertain to the collection on Iraqi targets).
After reporting Gonzales’ claimed reaction to the meetings at which DOJ’s lawyers told the White House the program was illegal, the report notes that Gonzales was lawyered up at his IG interview, but later provided further elaboration in writing.
Later on March 6, Goldsmith and Philbin went to the White House to meet with Addington and Gonzales to convey their conclusions that the [2 lines redacted] According to Goldsmith’s chronology of these events, Addington and Gonzales “reacted calmly and said they would get back with us.” Goldsmith told us that the White House was not worried that it was “out there,” meaning that it was implementing a program without legal support.
On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin’s interpretation of Yoo’s memoranda and on the need to change the scope of the NSA’s collection. Gonzales told us that he recalled the meetings of March 6 and March 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to “find a way forward.”147
147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal support for the program and [redacted]. Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of the report, he stated that he would not have brought Goldsmith and Philbin’s “concerns” to the attention of the President because there would have been nothing for the President to act upon at this point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President’s attention if the President could make a decision about them.
Remember the situation Gonzales would have been in. The interview (and probably, though not certainly, the review of the draft) would have taken place in fall to winter 2008, when Bush was still in office.
Thus, the interview would have happened during the period or just after DOJ IG conducted an investigation into what amounted to a CYA file Gonzales had carried around in his briefcase — documents and draft documents relating to all the illegal programs in which he had been involved, including his notes pertaining to the hospital confrontation over Stellar Wind. There’s reason to believe he was referred for that investigation precisely because it was recognized as a CYA file and he was no longer regarded as loyal on surveillance issues.
In addition, at the time, too, DOJ was still considering whether to file charges against Gonzales for the US Attorney scandal. So it makes sense that Gonzales’ retained lawyer, George Terwilliger, was there (and it is somewhat surprising that, given that John Ashcroft got away without cooperating, Terwilliger let him cooperate).
But then there is Emmet Flood.
Both before and after his tenure in the White House Counsel’s office — where he was brought in to deal with the scandals of the late Bush Administration — Flood was (and remains) a partner at Williams & Connolly. And not just a partner. He was formally part of Dick Cheney’s defense team when Patrick Fitzgerald was honing in on the Vice President for leaking Valerie Plame’s identity, and Flood would remain involved in protecting Cheney even after moved onto the taxpayer dime.
Emmet Flood may have been there in the name of protecting Executive Privilege, but it was not Bush’s privilege Flood was protecting.
So we learn that on March 6, 2004, Goldsmith and Philbin tell Gonzales and Addington that parts of Stellar Wind have never been legal. On March 7, 2004, Gonzales and Addington come back and tell OLC’s lawyers they’re wrong.
And when DOJ’s IG asked Gonzales whether — in the interim day — he had informed the President about this, Cheney’s defense lawyer pipes up and tells him not to answer. Given that Bush apparently learned new details of all this 4 days later when Comey and Robert Mueller would tell him directly, the answer is no (which is consistent with what Gonzales said when Cheney’s lawyer wasn’t present).
Which leaves the logical and thoroughly unsurprising conclusion — but one Cheney’s taxpayer funded lawyer didn’t want included in a legal document — Cheney (who is not a lawyer, nor does he have Article II authority directly) is the one who told Gonzales and Addington to dig in.
Update: Flood also had Gonzales refuse to answer a question about whether anyone had thought to include DOJ in the meeting with Congress.
At almost precisely the moment the FBI started investigating who was pestering Tampa Bay socialite Jill Kelley, an investigation that would lead to the resignation and investigation of David Petraeus, John McCain called for an investigation into top Obama officials leaking details of covert ops to make themselves look good.
Outraged by two recent articles published by the New York Times, which exposed the extent of U.S. involvement in cyberattacks made against Iran and the White House’s secret ‘Kill List,’ John McCain (R-Ariz.) and Saxby Chambliss (R-Ga.) took to the Senate floor to admonish the administration, and accuse it of widespread disregard for national security.
“The fact that this administration would aggressively pursue leaks by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases, but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” McCain said.
Now, McCain is outraged! that former top Obama official David Petraeus is getting the callous treatment given to those being investigated for leaks.
U.S. Senators John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) today released the following statement on the handling of the investigation into former CIA Director David Petraeus:
“While the facts of the case involving General David Petraeus remain unknown and are not suitable for comment, it is clear that this investigation has been grievously mishandled.
“It is outrageous that the highly confidential and law enforcement-sensitive recommendation of prosecutors to bring charges against General Petraeus was leaked to the New York Times. It is a shameful continuation of a pattern in which leaks by unnamed sources have marred this investigation in contravention to fundamental fairness.
“No American deserves such callous treatment, let alone one of America’s finest military leaders whose selfless service and sacrifice have inspired young Americans in uniform and likely saved many of their lives.”
And of course, McCain had no problem when the first story about poor Petraeus’ treatment appeared in December, quoting lots of McCain’s buddies calling for justice! for Petraeus.
McCain (and his sidekick Lindsey) are not the only ones rending their garments over the injustice of a top Obama official being investigated for leaking classified details to make himself look good. Jason Chaffetz keeps complaining about it. And Dianne Feinstein took to the Sunday shows to declare that Petraeus has suffered enough. Richard Burr apparently made false claims about how the Espionage Act has been wielded, of late, even against those whose leaks caused no harm.
Golly, you’d think all these legislators might figure out they have the authority, as legislators, to fix the overly broad application of the Espionage Act.
Meanwhile, Eli Lake — who launched the campaign to Let Our General Go last month — has an odd story complaining about Petraeus’ treatment. To Lake’s credit, he mentions — though does not quote — how Petraeus celebrated John Kiriakou’s guilty plea. Here’s what Petraeus said then about the importance of respecting your vows to secrecy:
It marks an important victory for our agency, for our intelligence community, and for our country. Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.
Lake also suggests Paula Broadwell’s job — writing fawning biographies of the man she was fucking — was the same as Bob Woodward’s.
What’s more, Broadwell herself was writing a second book on Petraeus. When Broadwell — a graduate of West Point — was writing her first biography of him, she was given access to top secret information covering the period in which Petraeus commanded allied forces in Afghanistan. This arrangement is common in Washington for established authors. Sources for Bob Woodward, whose books often disclose classified information that is provided to him through semi-official leaks, are not investigated for betraying state secrets.
Maybe it is, maybe Woodward is nothing more than a power-fucker. But it obscures the key difference (which should not be true but is) that when the White House sanctions a book, they get to sanction self-serving leaks for it.
Finally, Lake misstates something about selective treatment.
Senior officials such as Petraeus, who serve at the highest levels of the national security state, are almost never punished as harshly as low- and mid- level analysts who are charged with leaking. When former CIA director John Deutch was found to have classified documents on his unsecure home computer, he was stripped of his security clearance and charged with a misdemeanor.
An even better example — one not mentioned at all — is when Alberto Gonzales was found to have kept a CYA file, full of draft OLC memos and notes from a briefing on the illegal wiretap program, in a briefcase in his house. He resigned at the beginning of that investigation (and it has never been clear how much that played a role in his resignation; there are many interesting questions about Gonzales’ resignation that remain unanswered). But he suffered no consequences from keeping unbelievably sensitive documents at his house, aside from being denied the sinecure all other Bush officials got.
That said, that’s true of a lot of people in sensitive positions. Of the 40 witnesses who might be called against Jeffrey Sterling, for example, 6 have been found to have mistreated classified information (as has Sterling himself); that includes his direct supervisor while at CIA as well as 3 others cleared into the Merlin op (and I’m certain that doesn’t include Condi Rice, whose testimony the AIPAC defendants would have used to show how common leaking to the press was, nor does it include one other witness I strongly suspect has been involved in another big leak case). CIA withheld that detail from DOJ until right before the trial was due to start in 2011. But it does offer at least one metric of how common mistreating classified information is.
The prosecution of it, of course, is very selective. And that’s the problem, and David Petraeus’ problem, and Congress’ problem.
Yet that won’t ensure that Congress does anything to fix that problem with the means at their disposal, legislating a fix to stop the misuse of the Espionage Act. That’s because they like the overly broad use of it to cudgel leakers they don’t like. Just not the ones they’re particularly fond of.
I’m watching a CUNY conference on sources and secrets, which currently has a panel including Bob Woodward, Jane Mayer, and former NSA General Counsel Robert Deitz.
When asked whether he could think of a leak that had been damaging, Deitz said the exposure of the illegal (he called it “special”) wiretap program had been damaging.
Then, in the context of prosecuting leaks, Deitz argued that all leaks should be prosecuted, because they involve a felony violation of an oath (that’s not always true, but I’ll just accept that Deitz believes all felonies should be prosecuted). He went on to say, “How is it you put a line around this felony and not prosecute it?”
According to the 2009 Draft NSA IG Report, Deitz, on September 20, 2001, suggested to Alberto Gonzales they should consider modifying FISA (which was then being modified as part of the PATRIOT Act); he appears to have gotten no answer. On October 5, 2001 — having asked but not been permitted to read the underlying OLC authorization for it (Addington read him a few lines over the phone), having not participated in the drafting of the Presidential Authorization for it, and having given it just one day of legal review — Deitz said a program violating the exclusivity provision of FISA was legal. On October 8, Deitz briefed the analysts who would carry out this illegal program.
Deitz’ subordinates provided the only oversight of the program at first. (Later in today’s program he claimed the line between domestic and foreign intelligence was rigorously maintained.) To his credit, Deitz ultimately fought to have the Inspector General read into the program after it had operated for some months.
This is a man who provided the legal fig leaf for a patently illegal program (though the IG Report provides no details of Deitz’ actions for the March to May 2004 timeframe, when the program was even more illegal). This is a man who showed awareness of the legally correct way to do this — include this expanded program in PATRIOT — but nevertheless accepted and participated in not doing so.
And he advocates prosecuting every felony.
Perhaps before he talks about prosecuting journalists and their sources, he should consider his own role in encouraging felonies?
I’m at a great conference on national security and civil liberties. Unfortunately, speakers have repeatedly claimed that NSA fully informs Congress on its programs.
Even setting aside Dianne Feinstein’s admission that the intelligence committees exercise less oversight over programs conducted under EO 12333, there are a number of public documents that show the Executive failing to fully inform Congress:
April 27, 2005: Alberto Gonzales and Robert Mueller brief SSCI on PATRIOT Authorities in advance of reauthorization. They make no mention of the use of PR/TT to gather Internet metadata, much less the violations of Colleen Kollar-Kotelly limits on the kind of data collected during the first period of its use.
October 21, 2009: A Michael Leiter and NSA Associate Deputy Director briefing to the House Intelligence Committee pointed to the September 3, 2009 phone dragnet reauthorization as proof that NSA had regained FISC’s confidence, without mentioning further violations on September 21 and 23 — violations that NSA did not inform FISC about.
August 16, 2010: DOJ did not provide the Intelligence and Judiciary Committees with some of the pre-July 10, 2008 FISC rulings providing significant constructions of FISA pertaining to — at a minimum — Section 215 until after the first PATRIOT Reauthorization.
February 2, 2011: House Intelligence Chair Mike Rogers did not invite members of Congress to read the 2011 notice about the phone and Internet dragnets. Approximately 86 freshmen members — 65 of whom voted to reauthorize the PATRIOT Act, a sufficient number to tip the vote — had no opportunity to read that notice.
May 13, 2011: In a briefing by Robert Mueller and Valerie Caproni designed to substitute for the Executive’s notice to Congressmen about the phone and Internet dragnets, the following exchange took place.
Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?
A — To the FBI’s knowledge, those authorities have not been abused.
While the balance of the briefing remains redacted, this seems to suggest the FBI did not brief House Republicans about the dragnet violations.
September 1, 2011: NSA did not provide notice to the House Judiciary Committee about its testing of geolocation data under Section 215 until after the reauthorization of PATRIOT Act, in spite of the fact that it had been conducting such tests throughout the 2010 and 2011 debates on the PATRIOT Act.
The CBC has a Snowden-based story about how the NSA helped Canada’s Communications Security Establishment Canada in advance of and during the G20 held in Toronto in 2010. That isn’t all that surprising. As the story notes, it’s consistent with other stories of NSA spying surrounding international diplomatic meetings.
But the story does note that the Snowden documents make it clear there was no specific al Qaeda threat. Instead, the “threat” to the meeting came from “issue-based extremists.”
Much of the secret G20 document is devoted to security details at the summit, although it notes: “The intelligence community assesses there is no specific, credible information that al-Qa’ida or other Islamic extremists are targeting” the event.
No matter. The NSA warns the more likely security threat would come from “issue-based extremists” conducting acts of vandalism.
The comment reminds me of a paragraph in testimony Alberto Gonzales and Robert Mueller gave to the Senate Intelligence Committee in 2005, in advance of the first PATRIOT Act reauthorization. The testimony is notable for Gonzales and Mueller’s silence about the use of Pen Registers to collect a significant chunk of all the Internet-based metadata in the US (NSA had already been caught collecting “metadata” that was really “content” by then), even while he emphasized the “relevant to” language that had been added to Pen Registers in 2001.
Sensibly, Section 214 of the USA PATRIOT Act simplified the standard that the government must meet in order to obtain pen/trap data in national security cases. Now, in order to obtain a national security pen/trap order, the applicant must certify “that the information likely to be obtained is foreign intelligence information not concerning a United States person, or is relevant to an investigation to protect against international terrorism or clandestine intelligence activities.” Importantly, the law requires that such an investigation of a United States person may not be conducted solely upon the basis of activities protected by the First Amendment to the Constitution.
Section 214 should not be permitted to expire and return us to the days when it was more difficult to obtain pen/trap authority in important national security cases than in normal criminal cases. This is especially true when the law already includes provisions that adequately protect the civil liberties of Americans. I urge you to reauthorize section 214.
Over the course of the reauthorization process, of course, Congress added that “relevance” language to Section 215, which served as the basis for the phone dragnet of all American’s phone calls.
But the paragraph of the Gonzales/Mueller testimony that stuck out at me described how PATRIOT Section 203 — which permitted the sharing of Grand Jury, wiretap, and other criminal investigation information with intelligence professionals — had authorized information sharing at similar high profile meetings. After 8 bullet point examples showing how this information sharing had supported terrorism (or Iraqi) investigations, the testimony then revealed it had been used to authorize information sharing during 2004’s G-8 and Presidential Conventions.
In addition, last year, during a series of high-profile events — the G-8 Summit in Georgia, the Democratic Convention in Boston and the Republican Convention in New York, the November 2004 presidential election and other events — a task force used the information sharing provisions under Section 203(d) as part and parcel of performing its critical duties. The 2004 Threat Task Force was a successful inter-agency effort where there was a robust sharing of information at all levels of government.
Now perhaps these big meetings faced an Al Qaeda threat in 2004 that the G-20 didn’t face in 2010. But I’m cognizant that PATRIOT defines “foreign intelligence information” to include “sabotage,” which might be used to treat legitimate “issue-based extremists” as terrorists.
We already know that anti-war protestors (the kind of “single-issue extremists” who protested in big numbers in 2004) were investigated as terrorists as early as 2002, though DOJ professed to be unable to connect all the investigations together. Indeed, precisely that kind of “criminal” investigation started in local FBI offices is the kind of information that might be shared under PATRIOT 203(d) with a Task Force facing protestors.
We don’t know, from this one paragraph, what kind of information the government shared in 2004 in the name of “foreign intelligence.” But the 2010 Canadian example suggests the government is still (or was, as recently as 2010) treating legitimate protestors as outside infiltrators. Which makes it likely that the US did the same back during the height of anti-Iraq War protests.
They’re using the wrong agency and the wrong minimization procedures.
Section 215 reads, in part:
[T]he Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things [my emphasis]
Here’s who signed the application that kicked off the phone dragnet program:
This is probably the lesser of these two problems. After all, the law permits the FBI Director to delegate this, and delegating the application to your boss is probably perfectly fine. Though it is a bit of a conflict if the boss in question was, in part, trying to legalize a program that had operated under his purview when he worked at the White House.
The problem becomes bigger still given that there’s no explanation of how it is that an NSA declaration serves as backup for an application to obtain data for the NSA, the use of which is limited to FBI. At least in what we get (which, remember, is what got produced to Congress, not what got submitted to the Court), there’s no discussion of that process.
The other problem is a bit more complicated. As I described last week, the 2006 Reauthorization of the PATRIOT Act included a new requirement that the Attorney General develop minimization procedures for Section 215.
(1) IN GENERAL- Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005, the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this title.
(2) DEFINED- In this section, the term `minimization procedures’ means–
(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
This post describes how DOJ basically blew off that requirement and — at least according to former DOJ Inspector General Glenn Fine — instead used existing procedures that didn’t meet the terms of the law.
Given that this application passed just 2 months after the Reauthorization, this dragnet application was probably one of the earliest Section 215 applications submitted after the Reauthorization so there might have been a discussion about this new requirement anyway. But in this case, the new requirement should have posed an additional problem. The data went not to FBI, but immediately to NSA, an enormous database of non-publicly available of information pertaining to US persons, handed off without a hint of minimization first.
Here’s how the application dealt with minimization procedures.
NSA will apply the existing (Attorney General approved) guidelines in United States Signals Intelligence Directive 18 (1993) … to minimize the information reported concerning U.S. persons.
USSID 18 is supposed to be less restrictive than FBI minimization procedures (though FBI data gets shared freely with other agencies).
There’s not only no discussion in this application of how USSID 18 meets the terms of the law, but there’s no discussion of what it means that NSA basically got unminimized data for which FBI is, by law, the proper recipient, which should be the most voluminous minimization violation ever.
And yet … the application doesn’t even acknowledge this problem at all.
But to give those two background, I want to look at a passage in the Internet dragnet opinion, in which Colleen Kollar-Kotelly describes a fascinating briefing that she received in advance of authoring what Orin Kerr describes as a “quite strange” opinion.
After describing some declarations she received (including one from a person whose title remains redacted) and some questions she posed, she describes this briefing.
The Court also relies on information and arguments presented in a briefing to the Court on [redacted] which addressed the current and near-term threats posed by [redacted reference to Al Qaeda and others], investigations conducted by the Federal Bureau of investigation (FBI) to counter those threats, the proposed collection activities of the NSA (now described in the instant application), the expected analytical value of information so collected in efforts to identify and track operatives [redacted] and the legal bases for conducting these collection activities under FISA’s pen register/trap and trace provisions. 4
4 This briefing was attended by (among others) the Attorney General; [redacted] the DIRNSA; the Director of the FBI; the Counsel to the President; the Assistant Attorney General for the Office of Legal Counsel; the Director of the Terrorist Threat Integration Center (TTIC); and Counsel for Intelligence Policy.
That is, right at the beginning of her opinion, Kollar-Kotelly tells us that she had a briefing with:
On page 30, Kollar-Kotelly seems to refer to the same redacted person again, which in the context of the reference to CIA v. Sims in that footnote, seems to suggest this is a reference to CIA Director George Tenet, which suggests the redacted author of the brief she relied on was authored by Tenet. (I leave open the more tantalizing possibility that it’s someone like Dick Cheney, but highly doubt it.)
So before she approved the use of FISA’s Pen Register to collect much of the Internet metadata in the US, she had a meeting with at least one of the villains — Alberto Gonzales — of the hospital confrontation at which DOJ refused to reauthorize the Internet metadata program that was part of the President’s illegal wiretap program, and at least three of its “heroes:” Ashcroft, Mueller, and Goldsmith.
Interestingly, this meeting does not appear — at least not described as such — in the Draft NSA IG Report description of the transition to a FISC order.
After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefmg on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of 2004 to discuss the on-going efforts.
Was this “briefing” one of the Saturday meetings Hayden had with FISC’s Presiding Judge?
More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.
The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. [my emphasis]
The Internet dragnet was illegal. At least 3 of the people who conveyed the importance of authorizing this program had said so — in very dramatic fashion — less than four months before she would do so.
And yet she wrote a memo saying it was legal.
Update, 8/12/14: This application confirms that George Tenet was the redacted declaration submitter.