Caroline Krass

CIA Achieves a Whole New Scale of Torture Evidence Destruction

I once made a list of all the evidence of torture the CIA or others in the Executive Branch destroyed.

I thought it time to start cataloging them, to keep them all straight.

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Dunlavey’s paper trail “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)

Since that time, there have been at least two more:

  • CIA stealing back copies of cables implicating the President from SSCI servers
  • Someone modifying one of the black sites at which the 9/11 defendants were tortured, with Gitmo approval

But apparently, last summer, CIA’s Inspector General destroyed something else: both his disk-based and server based copies of the Torture Report.

But last August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

At some point, it is not clear when, after being informed by CIA general counsel Caroline Krass that the Justice Department wanted all copies of the document preserved, officials in the inspector general’s office undertook a search to find its copy of the report. They discovered, “S***, we don’t have one,” said one of the sources briefed on Sharpley’s account.

Sharpley was apologetic about the destruction and promised to ask CIA director Brennan for another copy. But as of last week, he seems not to have received it; after Yahoo News began asking about the matter, he called intelligence committee staffers to ask if he could get a new copy from them.

Sharpley also told Senate committee aides he had reported the destruction of the disk to the CIA’s general counsel’s office, and Krass passed that information along to the Justice Department. But there is no record in court filings that department lawyers ever informed the judge overseeing the case that the inspector general’s office had destroyed its copy of the report.

Two key parts of this story: Sharpley appears to have no idea who decided to nuke the report off the IG server. Hmmmm.

And DOJ has been suppressing this detail in filings in the FOIAs for the Torture Report itself (which may be what led Dianne Feinstein to make an issue of it last week).

Click through if you want a really depressing list of all the ways Richard Burr is trying to disappear the report.

I guess I shouldn’t be surprised that the entire report got disappeared. But destroying the whole thing is rather impressive.

Update: Katherine Hawkins reminds of of another one: the hood Manadel al-Jamadi wore when he suffocated to death while being tortured disappeared under circumstances the CIA IG considered non-credible.

Obama Bypassed OLC on Bin Laden Killing

Obama_and_Biden_await_updates_on_bin_LadenThere’s a name missing from Charlie Savage’s latest — a description of the legal analysis behind Osama bin Laden’s killing: Caroline Krass, who served as Acting Head of DOJ’s Office of Legal Counsel from January to September 2011. She’s not mentioned, apparently, because she was not among the four lawyers who collaborated on five memos deeming the raid to be legal.

Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.

[snip]

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

[snip]

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid.

The account makes it quite clear that Eric Holder was excluded from discussions.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

This means that on the OBL raid, Donilon excluded the Attorney General in the same way Dick Cheney excluded John Ashcroft from key information about torture and wiretapping. I find that interesting enough, given hints that Holder raised concerns about the legal authority to kill Anwar al-Awlaki in the weeks after we missed him on December 24, 2009, which led to OLC writing two crappy memos authorizing that killing in ways that have never been all that convincing.

But Savage provides no explanation for why Krass was excluded, which is particularly interesting given that the month after OBL’s killing, Savage revealed that President Obama had blown off Krass’ advice on Libya (as I read it, the decision to blow off her advice would have happened after the OBL killing, though I am not certain on that point). The silence about Krass is also remarkable given that she was looped in on the initial Libya decision — and asked to write a really bizarre memo memorializing advice purportedly given after the fact.

On Libya, Krass was looped in on questions addressing precisely the same issues addressed in the OBL killing (indeed, we were assassinating Qaddafi’s family members in Libya, which should have presented many of the same legal questions) both before and (as I understand it) after the OBL killing, but she was apparently not read in at all on the OBL killing itself.

There’s one more reason I think the question of OBL’s killing was more uncertain than laid out here. Savage reveals that even though lawyers had authorized not telling Congress about the raid, Leon Panetta did so on his own anyway.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

This is the action of someone — rightly — covering his ass, doing what the law actually requires rather than what his lawyer says it permits.

By the way, any bets on whether SSCI got a copy of that Preston memo, stating that they didn’t need to be informed on covert operations, contrary to the clear language of the National Security Act, before they approved his promotion from CIA General Counsel to DOD General Counsel (where he remains)? I bet no.

Ultimately, Savage depicts an Administration going even further than Cheney had on inventing legal authorizations for secret actions. Obama (and Donilon) will never catch heat for it like Cheney did, because everyone likes dancing on OBL’s watery grave. But make no mistake, this exhibits some of the same behaviors as we criticize Cheney for.

Update: I find this, from Savage’s June 2011 story on Krass, of particular interest given Savage’s description of the decision process on OBL.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

John Carlin Complains that ISIL Is Targeting Same Youth FBI Long Has Been

I’m reviewing some of the videos from the Aspen Security Forum. This one features DOJ Assistant Attorney General for National Security John Carlin and CIA General Counsel Caroline Krass.

I’m including it here so you can review Carlin’s complaints in the first part of the video. He explains to Ken Dilanian that ISIL’s recruiting strategy is different from Al Qaeda’s in that they recruit the young and mentally ill. He calls them children, repeatedly, but points to just one that involved a minor. 80% are 40 and under, 40% are 21 and under. In other words, he’s mostly complaining that ISIL is targeting young men who are in their early 20s. He even uses the stereotype of a guy in his parents’ basement, interacting on social media without them knowing.

Carlin, of course, has just described FBI’s targeting strategy for terrorist stings, where they reach out to young men — many with mental disabilities — over social media, only then to throw an informant or undercover officer at the target, to convince him to press the button that (the target believes) will detonate a bomb — though of course the bomb is an FBI-supplied inert bomb. He should know this, because before the end of the panel, he invokes Mohamed Osman Mohamud, the Portland youth convicted for pressing a button who was first targeted by FBI’s informant when he was 16 or so (and whose father asked FBI for help, only to have them target his son).

I’m not contesting the truth of Carlin’s claims. But if this is a new strategy — essentially adopting the strategy the FBI has used since 9/11 (and especially since 2009) — one that Carlin deems especially outrageous, then it ought to reflect back on FBI’s practice. If it is outrageous for ISIL to target young and in some cases mentally unstable men because they are so vulnerable because they’re not yet old enough to resist, then it should also be considered outrageous for FBI to do the same to fluff their terrorism conviction rates. Plus, Carlin’s depiction of this as a new strategy suggests all those earlier targeted young men may not have been recruited by core al Qaeda.

Not to mention, the vulnerability of this population ought to point to a different way of combatting terrorism (and domestic terrorism, which has been a bigger problem in recent weeks): to make this community less vulnerable.

 

Why Aren’t Tech Companies Demanding the Common Commercial Service Agreement OLC?

As noted, Ron Wyden used Eric Holder’s imminent departure as an opportunity to point to some secrets that he believes should be told. One of those pertains to what the 2003 OLC opinion on common commercial service agreements refers to.

Second, I have written to you on multiple occasions about a particular legal opinion from the Justice Department’s Office of Legal Counsel (OLC) interpreting common commercial service agreements. As I have said, I believe that opinion is inconsistent with the public’s understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is party to one of these agreements can consider whether their agreement should be revised or modified.

In her December 2013 confirmation hearing to be General Counsel of the CIA, the deputy head of the OLC stated that she would not rely on this opinion today. While I appreciate her restraint, I believe the wisest course of action would be for you to withdraw and declassify this opinion, so that other government officials are not tempted to rely on it in the future. I urge you to take these actions as soon as practicable, since I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch.

As I laid out in October 2013, Wyden has been trying to liberate this memo since before summer 2012, and he has (as he now is doing) renewed his request every time cybersecurity bills come up (and then some).

Some time last summer, Ron Wyden wrote Attorney General Holder, asking him (for the second time) to declassify and revoke an OLC opinion pertaining to common commercial service agreements. He said at the time the opinion “ha[d] direct relevance to ongoing congressional debates regarding cybersecurity legislation.”

That request would presumably have been made after President Obama’s April 25, 2012 veto threat of CISPA, but at a time when several proposed Cybersecurity bills, with different information sharing structures, were floating around Congress.

Wyden asked for the declassification and withdrawal of the memo again this January as part of his laundry list of requests in advance of John Brennan’s confirmation. Then, after having been silent about this request for 8 months (at least in public), Wyden asked againon September 26.

Since then, we’ve learned that the memo dates to 2003, and was a matter of first impression when it was written.

I’ve been writing about this memo since 2013, but I don’t have the legal support to FOIA something DOJ is obviously pretty embarrassed about.

But why hasn’t big tech? Why haven’t other companies that sign common commercial service agreements? Why hasn’t some lawyered up company — or lawyered up trade group — sued for this thing, as it clearly may affect their businesses?

Or would they just rather prefer not to know?

Executive Still Hiding Its Phone Dragnet Self-Authorization, While Making Sure We Know It Has It

Screen Shot 2014-09-06 at 9.48.41 AM

Back in February, Ron Wyden got then acting OLC head Caroline Krass to admit that Jack Goldsmith’s May 6, 2004 Stellar Wind authorization remained active. Although they could rely on it at any time, Krass suggested they weren’t, because FISA currently authorizes the very same phone dragnet that OLC authorized a decade ago.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

[snip]

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Last night, the government finally released a new version of that memo, reflecting all the things that have been declassified thanks to Edward Snowden’s leaks.

And it shows that a 15-page section of the memo authorize(s) the phone dragnet.

Only, that section is entirely redacted.

Even after the phone dragnet has been declassified for 15 months, the Executive refuses to show its claim that it can engage in that dragnet with or without Congressional authorization.

Understand what this amounts to: The Executive just waved its dick around in advance of Congressional action that may or may not reauthorize this program. It said, to Congress and to us, that it will continue operating its phone dragnet with or without Congressional authorization.

For what it’s worth, I think that’s a bluff. I believe Verizon would refuse to cooperate without explicit authorization from Congress and legal mandates it can show. But the Executive is, at least, trying to send a message that it doesn’t believe it needs anything so piddly as Congressional approval to spy on every single American.

The Other Authority for the Phone Dragnet

Back in February, I noted Ron Wyden’s question for then acting OLC head Caroline Krass (she’s now CIA’s General Counsel) about Jack Goldsmith’s 2004 OLC opinion authorizing the dragnet.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

This is an exchange Center for National Security Studies Kate Martin brings back into the discussion of whether USA Freedumber actually ends bulk collection.

[W]e don’t know whether the Justice Department has opined that other statutory authorities – not now addressed in the USA Freedom Act – could authorize the NSA’s bulk collection.  Without this knowledge, we can’t be certain whether the proposed amendments to section 501 (215) will in fact be sufficient to prohibit the NSA from engaging in bulk collection of metadata using some other hitherto unidentified authority.

This is not a fanciful concern.  There is in fact a still partly secret OLC opinion by the Justice Department that may address precisely this question.

CNSS is using the debate over USA Freedumber to demand the Administration declassify the rest of that opinion.

When the government declassified the statements submitted in the Jewel v. NSA case last December, it basically declassified everything that should be in that memo. So what’s the holdup on releasing the memo itself?

Caroline Krass Confirmed as CIA General Counsel in Landslide Vote

In the background of the fight between CIA and the Senate Intelligence Committee lurked the nomination of Caroline Krass.

Mark Udall had said that he would hold her nomination to get some answers on the Torture Report.

But she just got confirmed with just a few more no votes –4 — than the 2 she got from the Committee. Dianne Feinstein, Ron Wyden, Martin Heinrich, Mark Udall all voted yes.

This was predictable. As I pointed out the other day, the alternative to quickly confirming Krass was leaving Robert Eatinger — the guy who launched a witch hunt into Committee staffers — Acting Counsel at CIA. Even a mediocre candidate would be preferable to that, for Committee Democrats, and by all reports and appearances Krass is a very sharp and candid lawyer.

That said, in addition to seeking leverage over the Torture Report dispute, Committee members had expressed concern that Krass explicitly endorsed withholding privileged documents from the oversight Committee. So by rushing through Krass’ nomination, the Senate waived any opportunity to obtain some commitment for greater sharing with the Senate.

And thus it happens that, in response to an intolerable situation concocted by Article II, Article I pisses away even more of its authority.

Update: Here’s Udall’s statement on Krass.

Udall, a member of the U.S. Senate Select Committee on Intelligence, released his procedural hold today on the nomination of Caroline Krass to be the CIA’s general counsel, citing the conflict of interest of the acting-general counsel, as well as a firm and clear commitment by the president to declassify the committee’s landmark report on the CIA’s detention and interrogation program.

“We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate Intelligence Committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said. “The president has stated an unequivocal commitment to supporting the declassification of the Senate Intelligence Committee’s report. Coloradans expect me to hold him to his word.”

 

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

Why Are SSCI Members Asking So Many Questions about Torture?

By my count, Senate Intelligence Committee members asked CIA General Counsel nominee and Acting OLC Head Caroline Krass 3 questions, plus follow-ups, about torture (these are my summaries):

  • Udall 6: If you learned of a covert action that violated Convention Against Torture but did not violate a particular statute would you advise it was unlawful? Would you inform this committee?
  • Udall 8: If the EO banning torture were overturned, what binding legal authorities would prevent CIA from using techniques authorized by 2007 OLC memo authorizing extended sleep deprivation?
  • Heinrich 1: Can CIA officers participate in torture done by liaison services? If they do would anyone at CIA learn about it?

Granted, these questions come from people who have been particularly concerned about the Senate Torture report. So perhaps they’re just asking to ensure it doesn’t happen again.

But the questions, together, point to several potential loopholes around Obama’s purported ban on torture (even ignoring the way Executive Orders can be pixie dusted).

After all, as far as we know, the September 17, 2001 “Gloves Come Off” Memorandum of Notification remains active. That MON explicitly calls for partnering with countries that torture, both close partnership with Egypt (which was the first country we used to torture detainees), but even countries like Syria.

Then there’s the perennial question — which was the driving question in 2004 and 2005, which led to OLC memos Udall has made clear were based on CIA’s lies — of our compliance with the Convention Against Torture. We seem to have a sustained interest in humiliating detainees. Should we assume we continue to do so?

Finally, Udall’s question about the 2007 OLC memo, with his particular focus on sleep deprivation. As long ago as Faisal Shahzad’s interrogation, there have been suggestions that the High Value Interrogation Group might have found ways to keep detainees awake for extended periods. And while public explanations attributed Abu Anas al-Libi’s abbreviated shipboard interrogation to his own hunger strike, I do wonder whether some kind of coercion wasn’t also involved. Plus, there were claims that the CIA Annex in Benghazi was conducting interrogations. So I would be unsurprised if CIA were using sleep deprivation, again.

Again, perhaps Udall and Heinrich are asking these questions just to measure whether or not Krass would prevent CIA from getting back into the torture business. But I do find the questions troubling.

Jack Goldsmith’s Still Active Presidential Dragnet Authorization

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)