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David Kris Points to the Clause Loopholed Under David Barron on Metadata Collection

I’m working on a longer post on David Kris’ paper on the phone [and Internet] dragnets.

But for the moment, I want to note that he strongly implies the US is relying on 18 U.S.C. § 2511(2)(f) to collect international metadata. He does it when he first introduces the phone dragnet secondary order (page 2).

The order excluded production of metadata concerning “communications wholly originating and terminating in foreign countries.”5 215 Bulk Secondary Order at 2; see Business Records FISA NSA Review at 15 (June 25, 2009) [hereinafter NSA End-to-End Review], available at http://www.dni.gov/files/documents/section/pub_NSA%20Business%20Records%20
FISA%20Review%2020130909.pdf; August 2013 FISC Order at 10 n.10; cf. 18 U.S.C. §2511(2)(f) (“Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”). [my emphasis]

And he does it just after suggesting that the FISA Court may have approved the phone dragnet in 2006 — however shabby the legal case — just to have it under FISC supervision (note, he also nods to the Internet metadata dragnet, but as I’ll note he goes through some contortions to avoid addressing it all that directly).

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.147

147 With respect to metadata concerning foreign-to-foreign communications, which the FISC’s order expressly does not address, see 18 U.S.C. § 2511(2)(f)

This is important because it is precisely the clause (the one Kris cites above) that the Office of Legal Counsel reinterpreted in 2010 to cover past illegal access to phone metadata, including US based phone metadata.

The existence of that memo was first disclosed by Glenn Fine in his Exigent Letter IG Report. (See also this post.) He described how, in the context of its effort to clean up the legal process free access of phone data from the telecoms, DOJ had ordered up this opinion (though they claimed they were not relying on it). In 2011, DOJ provided enough information in response to a FOIA to make it clear the memo pertained to this passage.

Now, in context, Kris is just implying that the government is using this clause to get the telecoms to voluntarily turn over foreign to foreign communications.

Except we know precisely how the NSA defines “foreign communications.”

Foreign communication means a communication that has at least one communicant outside of the United States. All other communications, including communications in which the sender and all intended recipients are reasonably believed to be located in the United States at the time of acquisition, are domestic communications.

That is, so long as just one end of a communication is foreign, the NSA considers it a foreign communication (and therefore the telecoms can voluntarily disclose it under their interpretation of this clause of ECPA).

And remember: this opinion reinterpreting ECPA was written under the direction of — if not written by — David Barron, the guy Obama wants to have a lifetime appointment on the First Circuit.

I need to think through whether this means what I think it means. But it sure seems like Kris is not only saying that the government did use this loophole to collect metadata involving foreigners (and Americans). But given that DOJ claimed it could use this memo to clean up its entirely domestic communications problems (per the Fine IG Report), it sure seems like Kris is saying if we close the Section 215 collection, the government will just resume using ECPA.

Update: I just realized this post, which adopts an argument I made almost two weeks ago (that there is no original opinion for the phone dragnet) was written by Marty Lederman (who was at OLC during roughly the same period that Barron was).

Which is why I find it weird that Lederman makes an extended argument noting that an earlier clause in ECPA tweaked during the original PATRIOT Act bill prohibits this sharing of phone metadata.

You wouldn’t know it from Judge Eagan’s opinion–or from David Kris’s paper, for that matter–but Congress has actually considered the specific question about whether and under what circumstance service providers may disclose to the government the telephony metadata of their customers, and has enacted a statute dealing specifically with that question–a statute that expressly prohibits such disclosure.  Moreover, the prohibition in question was enacted as part of the very same law that includes Section 215, namely, the PATRIOT Act of 2001.

A provision of the Electronic Communications Protection Act (ECPA), 18 U.S.C. 2702(a)(3), states that “a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.”

Statutory language doesn’t often get much clearer than that:  A provider of remote computing service or electronic communication service to the public — a category that includes phone service providers — cannot knowingly convey consumer records or information to any governmental entity.

Remarkably, Congress added this prohibition to ECPA in section 212(a)(1)(B)(iii) of the 2001 PATRIOT Act itself–the same law in which section 215 expanded the “business records” provision upon which the government relies here.  The two provisions are only three pages apart in the Statutes at Large.  In other words, the government is relying here upon a broad, general “business records” provision included in the PATRIOT Act; but in that very same legislation, Congress included another provision specifically involving the business records of telephone customers, and in that more specific provision it precluded the very sort of records transfer at issue here.

The thing is, I find it almost impossible to believe that Lederman wouldn’t know about (or even didn’t review) that January 8, 2010 opinion. And he certainly must know what the implications of invoking foreign communications in the context of 18 U.S.C. § 2511(2)(f) to be.

I’m confused.

Update: I missed one other mention of 2511(2)(f), which comes in Kris’ incomplete description of all the violations in the phone dragnet program (it is incomplete, in part, because he cites from the June report of the problems rather than the August filing presenting them, which includes several more, probably more troubling violations; but he also misses details of a few of the other violations which is particularly interesting because he, of all people, must know this stuff).

(8) acquisition of metadata for foreign-to-foreign telephone calls from a provider that believed such metadata to be within the scope of the FISC’s orders, when it was not, NSA End-to-End Review at 15; cf. August 2013 FISC Order at 10 n.10 (“The Court understands that NSA receives certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court’s Orders.”); see generally 18 U.S.C. § 2511(2)(f) (“Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978”);

His inclusion of it here is interesting because this violation is likely the collection that Reggie Walton shut down temporarily on July 9, 2009. Does that mean they just kept collecting from this provider (I wonder, by the way, whether it’s something exotic like Skype), and deemed it covered by 18 U.S.C. § 2511(2)(f)? If so, Kris would have been among those who made the decision to do so.

Crowd of Unilateral Lawyers Applaud Unilateral Operator

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

Also not a judge.

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

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

[snip]

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

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

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

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

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

Trust us.

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

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

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

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

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

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

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

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

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

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

“The Patriot Act, which the president signed into law on October 2001”

I only noticed two things that might generously be considered typos (as opposed to outright falsehoods or lies of omission) in Dick Cheney’s entire infernal tome. There’s this reference to an October 10, 2002 speech from Jello Jay Rockefeller in support of the Iraq war:

One of the most eloquent statements of the necessity of removing Saddam came from Senator Jay Rockefeller, the vice chairman of the Senate Intelligence Committee. (393)

On October 10, 2002, of course, Jello Jay was not yet Ranking Member of SSCI. Rather, Bob Graham was Chair. On October 10, 2002, Graham was saying the following about the war:

With sadness, I predict we will live to regret this day, Oct. 10, 2002, the day we stood by and we allowed these terrorist organizations to continue growing in the shadows.

[snip]

This timid resolution, I fear, will only increase the chance of Americans being killed, and that is not a burden of probability that I am prepared to take. Therefore I will vote no.

Yeah, Cheney’s misattribution probably wasn’t a typo, but instead a cynical attempt to pretend that the Democrat who had reviewed the intelligence behind the war most closely had backed the war, rather than correctly predicted it would heighten the threat of terrorism.

But I don’t think the grammatical error in the following passage, describing the relationship between Cheney’s illegal wiretap program and the PATRIOT Act (which turns 10 today), is really a typo either.

One of the first efforts we undertook after 9/11 to strengthen the country’s defenses was securing passage of the Patriot Act, which the president signed into law on October 2001.

Thus begins the passage in which Cheney describes the genesis of his illegal wiretap program. Of course, the passage should either say, “which the president signed into law on October 26, 2001,” or “which the president signed into law in October 2001.”
A minor point, but one that might suggest Cheney once had the date in there and then took it out.

You see, including the actual date would have really disrupted Cheney’s narrative, which suggests Congress passed the PATRIOT Act and only then did he begin thinking about how to use NSA to fight terrorism, which (implicitly) is why he didn’t include the illegal program in PATRIOT. After a description of how PATRIOT broke down the wall between intelligence and law enforcement in the first paragraph, Cheney continues,

I also thought it important to be sure the National Security Agency, or NSA, which is responsible for collecting intelligence about the communications of America’s adversaries, was doing everything possible to track the conversations of terrorists, so I asked George Tenet whether the NSA had all the authorities it needed. Tenet said he would check with General Mike Hayden, who was then director, and a short time later both of them came to see me in my office in the White House. Hayden explained that he had already made adjustments in the way NSA was collecting intelligence. Those adjustments were possible within NSA’s existing authorities, but additional authorities were needed in order to improve the coverage and effectiveness of the program.

A few paragraphs later, he continued.

With [Bush’s] approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed.

It’s only five paragraphs after Cheney’s description of PATRIOT that he provides the date that–had he actually included the date of the PATRIOT Act–would have made clear that the illegal program started before the signing of the PATRIOT Act.

On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, which the determination of the attorney general that it was lawful to do so, authorized the program for the first time.

Of course, Cheney leaves out some key details along the way, such as that Hayden briefed the House Intelligence Committee about what he was already doing on October 1, which elicited some questions from Nancy Pelosi, then the Ranking Member on HPSCI. Cheney doesn’t mention that Bush clamped down on briefing Congress on October 5. And he doesn’t mention that Pelosi raised questions about minimization, in writing, on October 11, but never got answers to those questions.

Cheney also doesn’t mention that David Kris, who was busy drafting the PATRIOT Act, got an OLC opinion on September 25 approving the one change to FISA he deemed necessary to make with the PATRIOT.

To reveal those details–the briefings to Congress, Pelosi’s questions, Kris’ ability to get FISA changed under PATRIOT–would have made it clear that the rest of the “legal approval” process Cheney describes could have–should have–instead been done with Congress as part of the PATRIOT Act. I may be nitpicking here, writing an absurdly long post about Cheney’s use of the wrong preposition. But Cheney’s choice to bypass Congress even as it was making changes to FISA remains the biggest piece of evidence that he knew he was engaging in an illegal program that Congress would not entirely approve.

There will be a number of retrospectives in “honor” of PATRIOT Act’s birthday today. ACLU’s got a nifty infographic (the image above is just one part of it).

But ACLU’s other “tribute” to the PATRIOT–a lawsuit to force the government to reveal its secret interpretation of PATRIOT Act–and Cheney’s typographical tell that he recognizes he deliberately chose not to get Congressional approval for the illegal wiretap program are even more important.

As horrible as the PATRIOT Act is, after all, both the Bush Administration and the Obama Administration have exceeded the plain meaning of the act. For ten years, then, it has not been enough that Congress has eagerly dealt away our civil liberties. But the Executive Branch will take even what Congress won’t give.

In Re Sealed Case and the Goldsmith Memo

In addition to what I laid out here, comparing the 2006 White Paper with the May 6, 2004 Goldsmith memo on the warrantless wiretap program made me realize that the White Paper relies more frequently on In re: Sealed Case than Goldsmith does, at least in the unredacted portions. By my count, the White Paper refers to In re Sealed Case 9 times, whereas Goldsmith refers to it just 3 times (see pages 34, 47, 48; though technically one citation includes three quotes from it).

So I wanted to see why that might be–and what it might say about the program generally and the redacted sections of Goldsmith’s memo.

In Re Sealed Case: How Did the Patriot Act Change the “Wall” between Criminal and Intelligence Investigations?

In the PATRIOT Act, Congress expanded the limit on how the information sought in a FISA warrant could be used. It had required that foreign intelligence be the primary purpose of collection; in an attempt to break down the wall between criminal and intelligence investigations, PATRIOT allowed that foreign intelligence only be a “significant” purpose of the collection. In response to that change, Attorney General Ashcroft issued a memo finding that meant law enforcement could be the primary purpose of such collection and holding that criminal prosecutors could consult on the terms of the wiretaps to be used.

The FISA Court, noting that the FBI had misrepresented its goals in FISA collection in a number of recent instances (but citing only those from before 9/11) invoked its role in ensuring FISA collection meet certain minimization guidelines. It ruled that the government had to keep the Office of Intelligence and Policy Review in the loop in conversations between criminal and intelligence personnel, and criminal personnel could not direct wiretaps.

The FISA Court of Review reversed that decision, finding that the two functions were so intertwined as to permit the involvement of criminal personnel in planning wiretaps.

But its ruling also considered whether the change–allowing the government to use FISA to investigate “intelligence crimes”–was Constitutional under the Fourth Amendment. That discussion, while somewhat inconclusive, lays out some guidelines for what might be a reasonable search for a foreign intelligence purpose. It’s that discussion that provides ripe material for Goldsmith’s and the White Paper’s project of trying to claim the warrantless wiretap program was legal. But also, likely, caused big problems for the warrantless program as well.

The In Re Sealed Case Citations

Here’s how the unredacted parts of Goldsmith and the White Paper rely on In re Sealed Case.

Proof that “the wall” was a problem independent of 9/11

In attempts to dismiss the argument that the modifications Congress made to FISA after 9/11 prove Congress still intended the Administration to rely on its, both papers point to the discussion in In re Sealed Case about the problem of a “wall” between criminal investigations and intelligence. (Goldsmith 34, White Paper 28fn)

A claim that the opinion treats foreign wiretapping as an inherent authority

In a discussion of the President’s inherent authority to conduct warrantless searches of foreign intelligence, both papers cite In re Sealed Case on past Circuit discussions of the President’s power to use warrantless wiretaps to obtain foreign intelligence. Goldsmith does so in one discussion.

The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F 3rd 717, 742 (Foreign Intel. Surv. Ct. or Rev. 2002). On the basis of that unbroken line of precedent, the Court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” (Goldsmith 48)

The White Paper cites the first quote on page 31 and again on 37, the second on page 8, and the third on page 35.

In addition to the general use of In re Sealed Case to argue inherent authority, there’s a footnote in In re Sealed Case that dismisses concerns Laurence Silberman raised during the original debate on FISA about the non-adversary process laid out in it; Goldsmith noted that footnote did not extend to Silberman’s larger complaints about inherent power. (Goldsmith 47fn)

Discussion of how “special needs” would permit the use of FISA for criminal wiretaps

The White Paper, unlike Goldsmith in his unredacted discussion of times when “special needs” allow the government to avoid a warrant, relies on In re Sealed Case’s discussion on the topic. The White Paper  includes this quote:

One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes

beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46. (page 38)

It repeats that very reference later on the same page.

In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by

questioning”).

It cites the same passage again, claiming the FISCR had concluded that that passage held that foreign intelligence fit the definition of special needs.

And then borrows from what it claims the FISCR concluded.

As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. (page 39)

In other words, the unredacted sections of Goldsmith do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does. Mind you, he does discuss special needs and his discussion covers most of the same cases as the White Paper–notably on page page 39 and to some degree on 105. But he doesn’t cite FISCR.

“The Government … Has Affirmatively Argued that FISA Is Constitutional”

Now, obviously, we can only compare the unredacted parts of Goldsmith’s memo with what the White Paper uses. And there are definitely places in his memo where it appears likely that he discussed In re Sealed Case in currently redacted passage.

For example, two pages following Goldsmith’s use of In re Sealed Case to claim FISCR had endorsed warrantless wiretapping as part of the President’s inherent authority are redacted.

I’m guessing that Goldsmith might have felt obliged to address this part of In re Sealed Case:

The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

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The White Paper and the Classified Opinion

As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 OLC opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program. Yet in one case–the White Paper’s discussion of how the Hamdi decision affected the program–this probably repeats a discussion in another, still classified, Goldsmith opinion he wrote the day before he left on July 17, 2004. Then there’s a bunch of information that appears (in both redacted and unredacted form) in the Goldsmith opinion but not the WP. As I discuss below, I think there are a number of reasons for this.

I should warn that I did this in about a day or so, so I certainly may have misstated what’s in Goldsmith’s memo. Let me know if you catch anything like that.

General Contents

Goldsmith’s memo is organized this way:

Background (including genesis of program, the scary memo process of reauthorization, two sets of modifications, and prior OLC opinions)

Analysis [of whether the illegal wiretap program is legal under 5 different criteria]

I. Executive Order 12333

II. Statutory Analysis (of FISA and Title III wiretap laws)

III. Completely redacted criterion*

IV. Completely redacted criterion*

V. Fourth Amendment (including extensive discussion of why the current threat makes the illegal program a reasonable search)

*If I had to guess what the two completely redacted criteria are, I’d say one is the Defense Appropriation of 2004, which prohibited data mining of US data, and one is the First Amendment.

The bolded subjects above don’t appear in the WP. The exclusion of some of this–the discussion of how the program works, for example–is dismissed in the WP by saying it cannot be discussed in an unclassified document. The EO 12333 discussion, which presumably pertains in part to the wiretapping of US persons overseas, didn’t seem to be the big public concern after the program was revealed (or maybe the WP didn’t want to admit that limits on wiretapping Americans were just pixie dusted away). And some of these subjects–such as the Defense Authorization, if my guess that it’s one of the totally redacted criteria is right–were no longer operative in 2006 when the WP was issued.

In general, Goldsmith (and the WP) replace John Yoo’s authorization of the program under Article II with what he calls “new analysis” finding that the Afghan AUMF bestowed on the President full Commander in Chief powers, which in the process meant his war powers trumped FISA. The formula isn’t much more sound than what we suspect Yoo to have said, but it gives Goldsmith lots of places to insert wiggle room into interpretations of FISA, for example, arguing that the principle of constitutional avoidance suggests that the purported conflict between the AUMF and FISA must be resolved to make sense constitutionally which, in Goldsmith’s book, means a tie goes to the Commander in Chief.

The focus on the AUMF allows both documents to rehearse a long history of wartime wiretapping that just happens to magically skip the Vietman-era wiretapping that FISA was written to prohibit.

In addition, Goldsmith (and the WP) argues that the importance of the government’s interest in wiretapping al Qaeda makes the warrantless program “reasonable” under the Fourth Amendment. Note, this is almost certainly a departure from John Yoo’s November 2, 2001 Fourth Amendment based argument, given how closely that opinion seems to cling to his October 23, 2001 Fourth Amendment evisceration opinion, and given Goldsmith’s decision not to rely on that opinion on page 100. In the Fourth Amendment discussion, Goldsmith gives very extensive (but entirely redacted) information on the threats that justify such wiretapping; the WP effectively just says “trust us.”

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With David Kris Gone, Obama Rolls Out “New and Improved” Military Commissions

I think I’ll do a series of posts over the next few days all starting with the phrase, “with David Kris gone,” showing how Obama has finally gone off the deep end (the “Dark Side”) in his War on Terror and the Constitution.

This edition has to do with Obama’s announcement that he’s in the business of Military Commissions, new and expanded.

From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.

The new and improved Military Detention Regime has two parts.

First, the long-promised indefinite detention by fiat.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

One detail of it that sticks out is the standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Note, this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

The second part of the New and Improved Military Detention Regime is more and more military commissions.

The Secretary of Defense will issue an order rescinding his prior suspension on the swearing and referring of new charges in the military commissions. New charges in military commissions have been suspended since the President announced his review of detainee policy, shortly after taking office.

The Administration, working on a bipartisan basis with members of Congress, has successfully enacted key reforms, such as a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment, and a better system for handling classified information. With these and other reforms, military commissions, along with prosecutions of suspected terrorists in civilian courts, are an available and important tool in combating international terrorists that fall within their jurisdiction while upholding the rule of law.

Mind you, the “ban” on using tortured statements is no such thing, as it comes with a nice loophole.

But it all makes for a nice announcement for the shiny new military detention regime.

With David Kris Gone, DOJ Tries to Vacate Vaughn Walker’s FISA Opinion

There’s an interesting tidbit in the government’s mediation questionnaire in anticipation of their appeal of Vaughn Walker’s decision that al-Haramain had been illegally wiretapped and was entitled to damages.

The government is willing to negotiate.

In response to the direction, “Provide any other information that might affect the suitability of this case for mediation,” the government wrote:

This matter touches upon fundamental legal issues that may be difficult if not impossible to compromise. It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings. The government is unwilling to state, however, that it would refuse to participate in mediation.

Granted, they didn’t say, “Let’s make a deal.” But compared to the imperious language the government has been using throughout this case (directed not just at the al-Haramain team, but even at Judge Walker himself), the statement that “the government is unwilling to state … that it would refuse to participate in mediation,” is like a romantic love letter. (Compare it, too, to what Imperial County said regarding mediation of Judge Walker’s equally momentous ruling in the Prop 8 case: “Due to the nature and complexity of this case, mediation will not be beneficial;” the Prop 8 defendant-intervenor team itself didn’t even answer the question!)

So on what terms is the government willing to negotiate?

It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings.

They’re suggesting they might just maybe be willing to maybe get into bed with al-Haramain if they’d be willing to vacate Judge Walker’s rulings.

What’s so horrible in Walker’s rulings that the government might entertain “letting the terrorists win” in exchange for vacating the rulings? It seems there are three possible parts of Walker’s July 2008 ruling the government might want vacated. (And remember, this is all premised on my supposition that the government’s coy openness to mediation suggests they are focused on vacating Walker’s ruling, which is really just a WAG.)

FISA trumps State Secrets; Congress can limit Article II secrecy

First, Walker ruled that FISA trumps state secrets.

Plaintiffs argue that the in camera procedure described in FISA’s section 1806(f) applies to preempt the protocol described in Reynolds in this case. Doc # 435/20 at 11-14. The court agrees.

[snip]

Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Walker relied on the legislative history and another case in which congressional action pre-empted common law, Milwaukee v. Illinois, to side with al-Haramain. More interesting, perhaps, is the way Walker addressed the government’s claim that USA v. Nixon and Navy v. Egan held that Article II gave the President unlimited authority over classified information. I’m particularly interested in Walker’s comments on Navy v. Egan (because both the Bush and Obama Administrations routinely rely on Navy v. Egan to claim unlimited control over classification, and it’s one part of his ruling they repeatedly ignored) are Walker’s comments on that case.

Egan recognized the president’s constitutional power to “control access to information bearing on national security,” stating that this power “falls on the President as head of the Executive Branch and as Commander in Chief” and “exists quite apart from any explicit congressional grant.” Id at 527. But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required.

Note, Walker also includes several references endorsing Congress’ claim that the government can’t withhold information about illegal intelligence activities, which probably gives the Administration gas all by itself.

In other words, one aspect of Walker’s ruling the government might want to see vacated is the ways in which he shows Congress has the authority to enact laws to limit the President’s unlimited control over secrecy.

FISA is the exclusive means to conduct electronic surveillance

This is a big one, as readily apparent from the verbal gymnastics the government engaged in during the FISA Amendments Act debate. Repeatedly, they tried to avoid letting DiFi introduce language to the effect of, “no, we meant it the first time, exclusive means means exclusive means.”

In his July 2008 ruling, Walker said,

Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

To understand why the government might want this vacated, you have to go no further than the government’s stall tactics with regards to the White Paper that purportedly made the warrantless wiretap program retroactively legal in 2006. Read more

Will DOJ Finally Finish Its “Review” of Faulty White Paper on Illegal Wiretapping on Monday?

Steven Aftergood reports that, as of December 10, DOJ was still “reviewing” the flawed January 2006 white paper that the Bush Administration used to retroactively claim the 2001 Authorization to Use Military Force also authorized Bush to ignore FISA.

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

[snip]

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

Now, Aftergood suggests that, without Feingold around to nag DOJ twice a year, this is where things will remain, with the white paper under permanent review (sort of the same way torture is under permanent “investigation”).

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

And he may well be right.

But I wonder whether, some time years from now, we will learn that DOJ ended up completing its review and deciding to keep the white paper around about next Monday, March 7.

After all, Feingold was likely not the only one nagging DOJ to ditch the white paper.

David Kris was probably doing so too.

Even as the white paper was being written, now Assistant Attorney General for National Security David Kris tried to persuade members of the Bush Administration their effort to legitimize the program was problematic. And within two weeks after the white paper was released, Kris wrote a very clear debunking of the white paper. He demolished the Administration’s effort to claim AUMF authorized the program.

In sum, I do not believe the statutory law will bear the government’s weight. It is very hard to read the AUMF as authorizing “electronic surveillance” in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA’s exclusivity provision. And the AUMF suffers further in light of FISA’s express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think Congress can be said to have authorized the NSA surveillance.

And while his final conclusion was more gentle, predicting the program would be “met with … hostility,” Kris made it clear that, though he didn’t know all the facts about the program, it was probably constitutionally suspect.

So I would imagine Kris has been pushing DOJ to “review” this dubious white paper since he rejoined DOJ.

But Friday is his last day. With Marty Lederman’s departure last summer and Dawn Johnsen’s abandonment by the Administration, Kris’ departure will mean the last of the noted defenders of the rule of law will be gone from DOJ. Along with Russ Feingold, seemingly the last real defender of the Constitution in Congress.

So Monday morning, nothing–no one–will be there to stop DOJ from simply declaring “Mission Accomplished” of making the white paper, rather than Congressionally-passed statute, the law of the land.

David Kris Resigns from DOJ

The U.S. Department of Justice just announced that Assistant Attorney General David Kris just resigned, effective March 4.

“David Kris led the National Security Division (NSD) with great distinction through a period when the department confronted a number of threats to the nation’s security, and there is no doubt that his tireless work helped keep the American people safe,” said Attorney General Eric Holder. “I will miss his leadership.”

“I am grateful for my two years of service as Assistant Attorney General for National Security,” Kris said. “I started my legal career at the Department of Justice, and it has been a tremendous privilege to work with the department’s leadership and the dedicated professionals in the National Security Division.”

As Assistant Attorney General for National Security, Kris helped lead the department’s response to a number of serious threats to the nation, including the attempted bombing of Times Square, the al-Qaeda plot to bomb the New York subway system, the attempted detonation of a bomb onboard an airliner on Christmas Day 2009, and the arrest and prosecution of Mumbai plotter David Headley.

Under Kris’ leadership, the National Security Division also played a pivotal role in the investigation, arrest and swap of Russian illegal agents during the summer of 2010, and prosecuted a number of other significant espionage cases, including Kendall and Gwendolyn Myers, who were caught and prosecuted after decades of spying for the government of Cuba. The division also continued and expanded its enforcement in the areas of export control and counter-proliferation.

During Kris’ tenure, the National Security Division also strengthened its partnerships with the intelligence community and other national security elements, including the Department of Defense and the National Security Council, and advanced significantly in establishing the processes, policies, and procedures necessary to make NSD a highly effective and fully functioning division.

No reason for his departure was given, though Kris did mention his two year tenure; that might explain the March departure, two years after he was confirmed.

DOJ didn’t list it among Kris’ accomplishments, but two other things he is noted for are:

  • Making it clear that the Bush Admin justification for illegal wiretapping — which Holder’s DOJ has never withdrawn — didn’t make any sense
  • Testifying that we probably couldn’t charge material support for terrorism in military commissions

That is, he was willing to admit, on occasion, when DOJ was pushing the limits of its legal authority. Which means he will be missed.

Hamdan Gets A Full Panel Review

This is a rather interesting pre-holiday document dump:

The Pentagon’s war crimes appeals court announced without explanation Friday that the full U.S. Court of Military Commission Review, not a smaller panel, would review the conviction of Osama bin Laden’s driver, now free and living in Yemen.

[snip]

A three-judge panel heard both sides of the case in January, in Washington D.C. All the briefs had already been filed, and attorneys were anticipating a decision.

Now, five judges on the appeals court — Navy Capts. Daniel E. O’Toole and Eric E. Geiser, Air Force Cols. Cheryl H. Thompson and Barbara Brand and Army Col. David Conn — announced the “en banc” or full court review in a single page order issued to attorneys hours before the start of the long Labor Day weekend.

Rosenberg goes on to note that Geiser retired today–I’m asking for clarification whether that means he’ll be part of this full panel or not. [Update from Rosenberg: He’s retired and will not be deciding. He did decide though to vote for en banc review.]

At issue is whether the charges Salim Hamdan was ultimately convicted of–material support and conspiracy–were legitimate charges for him since they were not war crimes in 2001, when Hamdan was captured. In fact, Assistant Attorney General David Kris has said he doesn’t think material support charges can be used in military commissions at all (though he was okay with charging conspiracy in military commissions).

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible. [my emphasis]

Gosh, these military commissions sure aren’t holding up to scrutiny, are they?