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

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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

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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

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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?

“Incentives for Cooperation”

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David Kris gave a speech at the Brookings Institute last week, largely intended to make the case for civilian trials. Here’s the main framework of the speech:

Today, however, the consensus that developed in the aftermath of 9/11 shows some signs of unraveling.  In particular, there are some who say that law enforcement can’t – or shouldn’t – be used for counterterrorism.  They appear to believe that we should treat all terrorists exclusively as targets for other parts of the Intelligence Community or the Defense Department.

The argument, as I understand it, is basically the following:

  1. We are at war.
  2. Our enemies in this war are not common criminals.
  3. Therefore we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument, and precisely for that reason it may be attractive.

In my view, however, and with all due respect, it is not correct.  And it will, if adopted, make us less safe.  Of course, it’s not that law enforcement is always the right tool for combating terrorism.  But it’s also not the case that it’s never the right tool.  The reality, I think, is that it’s sometimes the right tool.  And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

  1. We’re at war.  The President has said this many times, as has the Attorney General.
  2. In war you must try to win – no other goal is acceptable.
  3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

We must, in other words, be relentlessly pragmatic and empirical.  We can’t afford to limit our options artificially, or yield to pre-conceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory.

Put in more concrete terms, we should use the tool that’s designed best for the problem we face.  When the problem looks like a nail, we need to use a hammer.  But when it looks like a bolt, we need to use a wrench.  Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it’s not effective and it’s not smart.  If we want to win, we can’t afford that.

If you take this idea seriously, it complicates strategic planning, because it requires a detailed understanding of our various counterterrorism tools.  If you’re a pragmatist, focused relentlessly on winning, you can’t make policy or operational decisions at 30,000 feet.  You have to come down, and get into the weeds, and understand the details of our counterterrorism tools at the operational level.

And that leads me to this question:  as compared to the viable alternatives, what is the value of law enforcement in this war?  Does it in fact help us win?  Or is it categorically the wrong tool for the job – at best a distraction, and at worst an affirmative impediment?

It really summarizes the Obama Administration’s embrace of man-ego-driven “pragmatism” and wonkiness in all things. The response to outright demagoguery (the “we are at war so we must torture and kill kill kill” perspective), the Obama Administration presents an alternative, purportedly pragmatic formulation that suffers from its own problems.

“We are at war either because of or as evidenced by the fact that the two big men keep saying we are.” Sure, Kris’ speechwriter might just have been trying to rebut the nutters who like to score points by claiming that Obama doesn’t agree with Dick Cheney that This Is War. But note what it does for this entire “pragmatic” argument: it presents the fact–“we are at war” with no examination of either the statement itself or the nuance covered up by it. It avoids questions like, “Against whom are we at war?” “Are we just at war against formal members of al Qaeda, or are we also at war against American losers who read Anwar al-Awlaki on the interToobz and go on to buy a GPS but never actually succeed at contacting anyone from al Qaeda?” “Why are we at war against some terrorism but not other terrorism and, at this point, are we even targeting the most effective and dangerous terrorists?” “What is the objective of this war?” “If we’ve embraced the concept of war, have we also embraced the legal concepts of war?” The Obama Administration has, like the Bush Administration, actually picked and chosen when it wants to claim to be at war and when that’s inconvenient; with a little more examination of the premise itself, we might be able to find a more reasonable way to resolve these inconsistencies. But “pragmatic” claim notwithstanding, this entire thought exercise starts by refusing to examine the foundational premise.

“We’re at war and so we must win!” Here’s where unexamined first principles, driven by man-ego, really introduce problems into this formula. Sure, if you’re at war, you want to win it (though it helps to define what winning looks like). But it assumes certain sorts of acts in its definition: “We must crush those Islamic extremists in our bare hands and eat them for breakfast!” (If you’re John Yoo, you must crush the testicles of Islamic extremists’ children…) Read more →

DOJ Still Deliberating about 2006 White Paper

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As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

On PATRIOTS and JUSTICE: What We Don’t Know

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The first thing Russ Feingold said in last week’s hearing on the PATRIOT Act renewal is that there’s something about the way the PATRIOT Act works that has not been made public.

Mr. Kris, let me start by reiterating something you and I have talked about previously. And that’s my concern that a critical information about the implementation of the PATRIOT Act has not been made public, information that I believe would have a significant impact on the debate. I urge you to move expeditiously on the request that I and others on this Committee have made before the legislative process is over.

In his statement, Feingold reiterates that concern, comparing the current debate with the earlier debates on FISA and PATRIOT reauthorization.

I welcome the administration’s openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.

But I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate.

[snip]

This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.

As a first step, the Justice Department’s letter made public for the first time that the so-called "lone wolf" authority – one of the three expiring provisions – has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

You get the feeling that Feingold wants to draw attention to this aspect of the Section 215 of the PATRIOT Act that hasn’t been made public, huh?

Before we look at what that might be, let me attend to the earlier references Feingold makes. Read more →

David Kris: Our Only Military Commission Convictions May Be Illegal

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I was interested in one particular detail in David Kris’ testimony before the Senate Armed Services Committee hearing on military commissions the other day. He said that we probably couldn’t charge and try people with "material support for terrorism" 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.

I’ve always thought the "material support for terrorism" to be a fairly arbitrary crime. That’s particularly true given that Eric Holder, back in his high-priced Defense Attorney days, got powerful white corporate executives off with no charges after they knowingly supported right wing terrorist violence, but as Attorney General, Holder recently oversaw DOJ win 15 year penalties on Muslims who claimed to believe their donations had supported charity.

But Aussie Lawyer reminded me of something more important. 

Two of the only people (maybe the only people?) who have been convicted thus far in our kangaroo court Guantanamo military commission system are David Hicks and Salim Hamdan. The charge both were convicted on?

Material support for terrorism.

Of course, both have served their sentence and been freed, so I question whether either will challenge their conviction based on Kris’ statement. 

But the current Assistant Attorney General for National Security seems to be suggesting that the only two convictions the Bush White House got from his military commissions would not hold up under appeal. Read more →

The 6-Month Review

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In Lichtblau and Risen’s piece on the ongoing warrantless wiretap problems, they report that the problems were identified in preparation of a semiannual review of the warrantless wiretap program.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Best as I can tell, this is the semiannual assessment in question.

‘‘(1) SEMIANNUAL ASSESSMENT.—Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

‘‘(A) the Foreign Intelligence Surveillance Court; and

‘‘(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

‘‘(i) the congressional intelligence committees; and

‘‘(ii) the Committees on the Judiciary of the House of Representatives and the Senate.

So, basically, every six months, the DNI and AG need to look at the program and see whether the NSA is complying with the targeting and minimization requirements of the law.

The targeting language basically says NSA cannot intentionally target US persons.

‘‘(b) LIMITATIONS.—An acquisition authorized under subsection (a)—

‘‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

And the minimization requirements require that incidentally collected US person data must not be circulated improperly and must be destroyed.

(h) “Minimization procedures”, with respect to electronic surveillance, means—

Read more →

The FISA Dance in the Wake of 9/11

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Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

Read more →