There’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.
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.
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.
On September 8, 2002, the paper copy of the NYT published this story:
More than a decade after Saddam Hussein agreed to give up weapons of mass destruction, Iraq has stepped up its quest for nuclear weapons and has embarked on a worldwide hunt for materials to make an atomic bomb, Bush administration officials said today.
In the last 14 months, Iraq has sought to buy thousands of specially designed aluminum tubes, which American officials believe were intended as components of centrifuges to enrich uranium. American officials said several efforts to arrange the shipment of the aluminum tubes were blocked or intercepted but declined to say, citing the sensitivity of the intelligence, where they came from or how they were stopped.
The diameter, thickness and other technical specifications of the aluminum tubes had persuaded American intelligence experts that they were meant for Iraq’s nuclear program, officials said, and that the latest attempt to ship the material had taken place in recent months.
Scooter Libby’s grand jury testimony strongly suggested Condi Rice was one source for the article. On the 8th, Rice and Dick Cheney took to the Sunday shows to fearmonger in support of war on Iraq, citing back to the NYT article.
”From a marketing point of view,” Andy Card boasted of his PR approach once, ”you don’t introduce new products in August.”
Which is why Aluminum Tube Day is such a wonderful time to roll out a war: one of the first days in September after everyone has returned from their Labor Day holidays.
Admittedly, the fearmongers are already heavily pushing propaganda, using some of the same tired tactics. They’re even getting National Defense University professors to attack the experts supporting — or even just demanding necessary underlying details before condemning — the Iran deal. With more and more Democratic senators announcing support for the Iran deal, Aluminum Tube Day may well be too late to fearmonger this deal.
But that won’t stop Dick Cheney (and his fellow Iraq War shill Danielle Pletka) from celebrating Aluminum Tube Day by fearmongering again at American Enterprise Institute.
How will you celebrate the 13th anniversary of the kick-off of Iraq War fearmongering?
One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.
On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.
Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.
This appears to have led directly to Comey drafting his resignation letter.
But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).
Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]
I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).
The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.
And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.
But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.
Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.
That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.
Footnote 147 of the DOJ IG Report on Stellar Wind (PDF 462-3) modifies a discussion of the discussions on March 6 and 7, 2004 in which Jack Goldsmith and Patrick Philbin informed David Addington and Alberto Gonzales that they could not reauthorize Stellar Wind — in spite of applying a relaxed standard of review — because the White House wanted them to affirm that John Yoo’s November 2, 2001 memo had covered the program, yet Yoo’s memo had not included all aspects of it (this likely pertains to the collection of Internet metadata from telecom switches, though it may also pertain to the collection on Iraqi targets).
After reporting Gonzales’ claimed reaction to the meetings at which DOJ’s lawyers told the White House the program was illegal, the report notes that Gonzales was lawyered up at his IG interview, but later provided further elaboration in writing.
Later on March 6, Goldsmith and Philbin went to the White House to meet with Addington and Gonzales to convey their conclusions that the [2 lines redacted] According to Goldsmith’s chronology of these events, Addington and Gonzales “reacted calmly and said they would get back with us.” Goldsmith told us that the White House was not worried that it was “out there,” meaning that it was implementing a program without legal support.
On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin’s interpretation of Yoo’s memoranda and on the need to change the scope of the NSA’s collection. Gonzales told us that he recalled the meetings of March 6 and March 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to “find a way forward.”147
147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal support for the program and [redacted]. Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of the report, he stated that he would not have brought Goldsmith and Philbin’s “concerns” to the attention of the President because there would have been nothing for the President to act upon at this point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President’s attention if the President could make a decision about them.
Remember the situation Gonzales would have been in. The interview (and probably, though not certainly, the review of the draft) would have taken place in fall to winter 2008, when Bush was still in office.
Thus, the interview would have happened during the period or just after DOJ IG conducted an investigation into what amounted to a CYA file Gonzales had carried around in his briefcase — documents and draft documents relating to all the illegal programs in which he had been involved, including his notes pertaining to the hospital confrontation over Stellar Wind. There’s reason to believe he was referred for that investigation precisely because it was recognized as a CYA file and he was no longer regarded as loyal on surveillance issues.
In addition, at the time, too, DOJ was still considering whether to file charges against Gonzales for the US Attorney scandal. So it makes sense that Gonzales’ retained lawyer, George Terwilliger, was there (and it is somewhat surprising that, given that John Ashcroft got away without cooperating, Terwilliger let him cooperate).
But then there is Emmet Flood.
Both before and after his tenure in the White House Counsel’s office — where he was brought in to deal with the scandals of the late Bush Administration — Flood was (and remains) a partner at Williams & Connolly. And not just a partner. He was formally part of Dick Cheney’s defense team when Patrick Fitzgerald was honing in on the Vice President for leaking Valerie Plame’s identity, and Flood would remain involved in protecting Cheney even after moved onto the taxpayer dime.
Emmet Flood may have been there in the name of protecting Executive Privilege, but it was not Bush’s privilege Flood was protecting.
So we learn that on March 6, 2004, Goldsmith and Philbin tell Gonzales and Addington that parts of Stellar Wind have never been legal. On March 7, 2004, Gonzales and Addington come back and tell OLC’s lawyers they’re wrong.
And when DOJ’s IG asked Gonzales whether — in the interim day — he had informed the President about this, Cheney’s defense lawyer pipes up and tells him not to answer. Given that Bush apparently learned new details of all this 4 days later when Comey and Robert Mueller would tell him directly, the answer is no (which is consistent with what Gonzales said when Cheney’s lawyer wasn’t present).
Which leaves the logical and thoroughly unsurprising conclusion — but one Cheney’s taxpayer funded lawyer didn’t want included in a legal document — Cheney (who is not a lawyer, nor does he have Article II authority directly) is the one who told Gonzales and Addington to dig in.
Update: Flood also had Gonzales refuse to answer a question about whether anyone had thought to include DOJ in the meeting with Congress.
Consider the following redactions.
Starting at PDF 146, the entire section describing what Michael Hayden did in the days immediately after 9/11 is redacted. Here’s what is included in the Snowden version.
(TS//SV/NF) On 14 September 2001, three days after terrorist attacks in the United States, General Hayden approved the targeting of terrorist-associated foreign telephone numbers on communication links between the United States and foreign countries where terrorists were known to be operating. Only specified, pre-approved numbers were allowed to be tasked for collection against U.S.-originating links. He authorized this collection at Special Collection Service and Foreign Satellite sites with access to links between the United States and countries of interest, including Afghanistan. According to the Deputy General Counsel, General Hayden determined by 26 September that any Afghan telephone number in contact with a U.S. telephone number on or after 26 September was presumed to be of foreign intelligence value and could be disseminated to the FBI.
(TS//SV/NF) NSA OGC said General Hayden‘s action was a lawful exercise of his power under Executive Order (E.O.) 12333, United States Intelligence Activities, as amended. The targeting of communication links with one end in the United States was a more aggressive use of E.O. 12333 authority than that exercised by former Directors. General Hayden was operating in a unique environment in which it was a widely held belief that additional terrorist attacks on U.S. soil were imminent. General Hayden said this was a “tactical decision.“
(U//FOUO) On 2 October 2001, General Hayden briefed the House Permanent Select Committee on Intelligence (HPSCI) on this decision and later informed members of the Senate Select Committee on Intelligence (SSCI) by telephone. He had also informed DCI George Tenet.
(TS) At the same time NSA was assessing collection gaps and increasing efforts against terrorist targets immediately after the 11 September attacks, it was responding to Department of Defense (DoD), Director of Central Intelligence Community Management Staff questions about its ability to counter the new threat.
We can tell the discussion in the released version is different, even though it is entirely redacted. That’s because the discussion is longer, appears to include two footnotes, and has some indentations that don’t appear in the Snowden version.
But as it is, the discussion is legally dangerous for the Executive, because it either shows that NSA used the 15-day window permitted under FISA (which would make the Yoo memos all the more problematic), or conducted this spying without any authorization. (There are also “doth protest too much” discussions of how the NSA never spied on Americans before this that we know to be false, so I suspect that’s part of the problem.)
The final report redacts a discussion (PDF 148-149) titled, “Vice President Asked What Other Authorities NSA Needed.” Some related discussion appears in the Snowden version, but clearly not the entire discussion.
Mr. Tenet relayed that the Vice President wanted to know if NSA could be doing more. General Hayden replied that nothing else could be done within existing NSA authorities. In a follow-up telephone conversation, Mr. Tenet asked General Hayden what could be done if he had additional authorities. General Hayden said that these discussions were not documented.
Though it’s possible — perhaps even probable — that what the NSA draft depicts as NSA identifying its own needs is actually Hayden getting people to identify the needs Cheney had already identified for him.
In any case, the final IG report complains that none of this was documented, which suggests there was far more of interest that actually went on in these discussions.
Perhaps most interesting, the NSA redacts almost all of whatever became of this discussion.
Among other things, NSA considered how to tweak transit collection-the collection of communications transiting through but not originating or terminating in the United States. NSA personnel also resurfaced a concept proposed in 1999 to address the Millennium Threat. NSA proposed that it would perform contact chaining on metadata it had collected. Analysts would chain through masked U.S. telephone numbers to discover foreign connections to those numbers, without specifying, even for analysts, the U.S. number involved. In December 1999, the Department of Justice (DoJ), Office of intelligence Policy Review (OIPR) told NSA that the proposal fell within one of the FISA definitions of electronic surveillance and, therefore, was not permissible when applied to metadata associated with presumed U.S. persons (i.e., U.S. telephone numbers not approved for targeting by the FISC).
Though PDF 150 appears to have a footnote that would modify that discussion (but that doesn’t appear in the Snowden version).
According to NSA OGC, DoJ has since agreed with NSA that simply processing communications metadata in this manner does not constitute electronic surveillance under the FISA.
This footnote may refer to the SPCMA decision in 2007 to 2008. Except that’s not what Binney et al proposed back in 1999. On the contrary: SPCMA permits NSA to chain through unmasked US person metadata, whereas Binney had proposed permitting only chaining through masked US person identifiers.
Which suggests the George Ellard may have been misrepresenting what was possible in this sensitive IG Report designed for Congress.
But that would make it easier to come to this conclusion, one not included in the Snowden version:
Under its authorities, NSA had no other options for the timely collection of communications of suspected terrorists when one end of those communications was in the United States and the communications could only be collected from a wire or cable in the United States.
No wonder they redacted the Binney discussion.
When Judy Miller wrote a piece for the WSJ pitching her new autobiographical novel, she was very specific about what she had said and not said with Dick Cheney and when.
I have never met George W. Bush. I never discussed the war with Dick Cheney until the winter of 2012, years after he had left office and I had left the Times.
Particularly given that the only question of those I posed for my book that Miller did not answer was whether she saw Cheney on the trip to Aspen that she used to explain Scooter Libby’s Aspen letter, I find her admission that she did and does speak to Cheney — though had not, about the war — telling. (Remember, too, that Cheney did not release journalists he had spoken to to reveal him as a source in the way everyone else in the Executive Branch did.)
Miller goes on to present a nonsense story about how Fitzgerald misled her and caused her to testify incorrectly, falsely testifying to the grand jury that Libby had told her Plame was at the CIA back in June. It doesn’t make sense — and doesn’t do anything to undermine the other evidence that would have been sufficient to convict Libby, notably Libby’s own notes and David Addington’s testimony as well as a second, far more important, meeting between Libby and Miller just days before Novak outed Plame.
Maybe Miller just has no fucking clue what got presented at the trial?
But having presented a flimsy excuse to question the verdict against Libby, Miller has presented others with an opportunity to point to another detail she includes in her book: that Fitzgerald offered to drop the charges against Libby if he would testify against Cheney. Again, that’s not surprising. Libby’s lies served to cover up Cheney’s orders to leak stuff to Judy Miller (not in the meeting she newly focuses on, but in the meeting during the week of Novak’s article).
Miller also writes in her book that she learned from Libby’s attorney that Fitzgerald “had twice offered to drop all charges against Libby if his client would ‘deliver’ Cheney to him.”
Cheney says that shows what Fitzgerald’s real intentions were in going after Libby.
“It was a runaway special prosecutor who, I think, manipulated the system because he was trying to make a name for himself,” Cheney said. “I apparently was the target based upon the fact that he went to Scooter’s lawyer and told him if Scooter would testify against me he’d drop the charges against Scooter. I hadn’t been accused of anything. I hadn’t done anything.”
This, of course, is bullshit. The key issue at the trial — the key reason why Libby’s claims about his lies were important — had to do with his own notes reflecting Dick Cheney ordering Libby to leak classified information to Judy Miller, information that Cheney hung Libby out to dry on in his first interview with Fitzgerald. Nevertheless, Cheney uses it to proclaim Libby innocent, which he can’t be if Cheney’s own interview with Fitzgerald was honest.
Either Libby lied to the grand jury, or Cheney lied to Fitzgerald and possibly, in his unreleased second interview, to the grand jury. One of them lied. Probably, both did.
Whatever the evidence against Dick Armitage is (and the evidence shows that both journalists who learned of Plame’s CIA ties from him asked inexplicably leading questions to elicit that response, and both journalists had spoken with OVP before they spoke with Armitage), the evidence is also that Dick Cheney ordered Libby to leak stuff and the record shows (and nothing from Miller’s book discussed thus far, at least, contradicts) that Libby included Plame’s identity in that.
By the time Fitzgerald subpoenaed Miller, Cheney may not have been accused of anything, but he had been required to give a second, sworn interview with Fitzgerald that could be introduced to the grand jury because his first interview differed in dramatic ways from Libby’s grand jury appearances. It was that interview, by all appearances, that led to the Judy subpoena.
Cheney doesn’t hide that he’s still trying to get the guy who covered up for him a pardon. Judy’s book is just the convenient, albeit factually laughable, claim on which he plans to hang that effort.
Whatever information Judy laundered for the Administration back in 2002 (and Libby, at least, claimed it was Condi Rice who did such laundering before the war, not him or Cheney, which is not entirely inconsistent with Miller’s currently operative claims) and far more obviously after it, she is back to serving as Cheney’s cut-out now.
In nothing yet made public does Judy deny serving as Cheney’s cut-out. Which is good, because the whole effort seems to be proof that she continues to do so.
Almost 3 years ago, I discovered that the judge in the ACLU torture FOIA, Alvin Hellerstein (who recently ordered the Administration to release images from torture), was trying to force the Administration to declassify a phrase making it clear torture had been authorized by the September 17, 2001 “Gloves Come Off” Memorandum of Notification. The phrase appeared on a January 28, 2003 Guidelines on Interrogation document signed by George Tenet (this post describes what great CYA including the phrase was).
In my reporting on it, I noted that National Security Advisor James Jones had secretly written a declaration in the suit arguing the phrase couldn’t be released. And I also noted that CIA’s own declarations conflicted about who had made torture a Special Access Program, CIA or the National Security Council.
Ultimately, however, the 2nd Circuit — in an opinion written by Judge Richard Wesley — reversed Hellerstein and permitted the Administration to keep that short phrase secret (though the Administration permitted that detail to be declassified for the Torture Report).
These issues have resurfaced in a related FOIA suit being reviewed by the 2nd Circuit (including Wesley and Judges Reena Raggi and Gerard Lynch).
Back in late 2012, Main Street Legal Services FOIAed the NSC for records on drone killing (including minutes of NSC meetings in 2011). The government refused to respond, arguing NSC is not an Agency subject to FOIA. So Main Street asked for discovery that might help it show that NSC is an Agency. It lost that argument with District Judge Eric Vitaliano, and this Appeal focuses on the issue of whether NSC is an Agency for purposes of FOIA or not.
In addition to pointing to statutory and historical reasons why NSC is an Agency, the appeal also points to things — including torture, but also including things like cybersecurity, crafting Benghazi talking points, and drone-killing — that were run out of NSC. The government, in response, argued that the President was very closely involved in NSC and presided over the Principals Committee, meaning NSC was too proximate to the President to be subject to FOIA. The response also keeps insisting that NSC is an advisory body, not anything that can make decisions without the President.
That back and forth took place in the first half of 2014.
Then, the Torture Report Summary got released, showing that CIA records indicate President Bush was not briefed on torture until 2006 but that NSC figures — Alberto Gonzales and Condi Rice, among others — told CIA torture was authorized. Main Street wrote a letter in February pointing to the evidence that the President was not in the loop and that NSC authorized torture.
The SSCI Report found that NSC committees, on which the President does not sit, debated, authorized, and directed CIA to apply specific interrogation techniques to specific detainees. In 2004, for example, CIA “sought special approval from the National Security Council Principals Committee” to use “enhanced interrogation techniques” on detainee Janat Gul. Thereafter, NSC principals met and “agreed that ‘[g]iven the current threat and risk of delay, CIA was authorized and directed to utilize” the techniques on Mr. Gul.
The question of who authorized torture thus became a central issue at the oral argument in this suit on March 2 (this discussion starts after 34:00). After Raggi raised this issue, Wesley went on with some urgency about the possibility that someone started torturing without the input of the President.
Judge Wesley: Are you saying then that anything the CIA did in terms of enhanced interrogation techniques clearly, was clearly a Presidential directive?
NSC Counsel Jaynie Lilley: No, your honor —
Wesley: Well then, well if that’s not the case, its a very curious position for you to take because some of these bear heavy burdens. Some of these assertions that you’re making that the President is at the end of all these decision chains bear heavy burdens and I don’t quite understand it. Congress said sole duty is to advise and assist the President. If someone else decides to use enhanced interrogation techniques and we decide that this is done by the group, solely by the advisor, assistant to the President, then it’s the President’s decision is it not? Did the decision flow through the NSC?
Lilley: Your Honor, many decisions–
Wesley: Would it, structurally, I’ll it easier, would it structurally have flowed through the NSC as it’s currently structure pursuant to presidential order and an act of Congress, would a decision to conduct enhanced interrogation techniques have flowed through the NSC up to the President. Pursuant to the way it’s structured now.
Lilley: Your Honor, let me be sure I’m answering the question that your asking. There are decisions that are made on matters of national security policy that come through the various–
Wesley: Pursuant to law and the structure of the NSC who had the authority? Did only one person have the authority to order enhanced interrogations techniques?
Lilley: Your Honor, –
Wesley [voice is rising]: Yes or no?!
Lilley: I cannot speak to individual decisions –
Wesley: Well, if you can’t tell me, then you’re telling me that then the President perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. Because I have a hard time understanding how their sole function is to advise or assist the President if suddenly they decide, independent of any Presidential approval, that they can torture someone!
Lilley: Your Honor–
Wesley: It’s very simple Counselor, and I’ve been troubled by the government’s position on this throughout. I’ve been troubled — for twenty years the Office of Legal Counsel said that this was an Agency. And then suddenly in a letter, in 1994, for some reason the Agency flips. We have in the legislative record, we have the committee notes from the two committees, and what is one of the entities that’s listed when they decided to include the Executive office, what is one of the Agencies that Congress lists, one of the groups that Congress lists as an Agency? The NSC. Who created the NSC? The President didn’t. An act of Congress did. An Act of Congress creates two of the Subcommittees. A very curious advisor forced on the President — it sounds like a Separation of Powers issue to me. But, tell me. And then I won’t ask again. And if you don’t want to answer my question don’t answer.
Pursuant to the way the it is currently structured if in your view the NSC is solely an advisory authority, who had the authority to order enhanced interrogation techniques? Who?
Lilley: In any matter of national security policy, there are two places where decisions can be made. One by the President and one by that Agency with the statutory authority to take the act.
Wesley: So you’re telling me that the CIA had the authority to do that?
Wesley: The Director of the CIA could have done this independent of the President’s directive?
Lilley: Your Honor, I cannot speak to that.
Wesley: But for purposes of this discussion you’re saying ‘not someone in the NSC’?
Lilley: The NSC could not — does not direct any individual Agency to take individual actions.
Wesley went onto to describe the plight of the CIA that might not want to do something (torture) it has been ordered to do by the NSC, “it’s on him, legally, not on the NSC.” “Yes, your Honor,” Lilley agreed.
While Wesley didn’t say so, that is, precisely, what Tenet argued when he noted Torture was done pursuant to Presidential order on his 2003 Interrogation document, dodging responsibility for torture. But if Lilley’s claim is correct, then CIA bears all the legal responsibility for torture.
At the end of the hearing, Wesley asked Lilley whether they intend to respond to Main Street’s letter. When Lilley said no, Wesley and Raggi specifically instructed Lilley to respond, noting actual page numbers.
In its response on March 16, the government — some members of which have been arguing for months that the NSC approved torture at every step of the process — newly asserted (ignoring the references that show Bush was never briefed until 2006) that George Tenet was only getting NSC’s advice; he was not being ordered or authorized by them.
Another cites a CIA official’s notes indicating that the Principals Committee “agreed” that CIA was “authorized and directed” to engage in certain activity, confirming the CIA had such authority, and that the then-Attorney General approved the resulting action. See id. at 345. These references confirm that the NSC functions in accordance with the advice and assistance role assigned to it by statute and by the President (currently in Presidential Policy Directive-1) as an interagency forum for coordination and exercises no independent decisional authority. The authority for the underlying decisions rested with the relevant heads of departments and agencies or the President himself.
Remember, DOJ has been claiming it never opened this document. Has it now done so?
But the SSCI evidence that Bush was never briefed is a point Main Street made in a letter last night.
Defendant still fails to explain who authorized the torture if not NSC, as CIA’s own records describe, especially given that CIA did not brief the President until years later.
A great deal of documentation shows that “NSC” (or rather, Dick Cheney and David Addington) authorized torture. But the NSC is trying to sustain the unsustainable position that a Memorandum of Notification not listing torture authorized torture, that Bush never got briefed on torture, and that all those meetings at which NSC members (and Dick Cheney) authorized torture didn’t amount to authorizing torture.
Because if it admitted the truth — that NSC or the Vice President authorized torture without any review by the President — then it would make all these documents, the 9000 documents President Obama got CIA to successfully hide, subject to FOIA.
And then we’d really start having some fun.
Update: I’ve added some to my transcription from the hearing and some additional analysis.
In a letter to the NYT complaining that the paper compared his client, David Petraeus, with Stephen Kim and John Kiriakou, defense attorney David Kendall implicitly makes the argument that mistress-biographers have a better recognized privilege to access classified information than defense attorneys. (h/t Steven Aftergood via Josh Gerstein)
Now, far be it for me to criticize Kendall’s lawyering ability. After all, his firm, Williams & Connolly, has developed quite the expertise for getting well-connected Republicans off for leaking covert officers’ identities, having done so for Ari Fleischer, Dick Cheney, and now David Petraeus.
But his letter is ridiculous on both the facts and his rebuttal of the comparison, at least as it pertains to John Kiriakou.
First, Kendall omits key facts in his depiction of Petraeus’ crimes.
General Petraeus’s case is about the unlawful removal and improper storage of classified materials, not the dissemination of such materials to the public. Indeed, a statement of facts filed with the plea agreement and signed by both General Petraeus and the Justice Department makes clear that “no classified information” from his “black books” (personal notebooks) that were given to his biographer, Paula Broadwell, appeared in the biography.
He notes the plea deal “makes clear that ‘no classified information’ from his ‘black books’ … appeared in the biography.” That’s a very different thing than claiming that no classified information Petraeus shared with Broadwell appeared in her fawning biography of his client — and the record seems to suggest that it does.
Kendall also neglects to mention that this case is also about his client, just days after applauding Kiriakou’s plea, lying to the FBI. While, through the good grace of Kendall’s lawyering, Petraeus has gotten off scot free for a crime that others do years of prison time for, Petraeus nevertheless admitted that he committed that crime.
Indeed, as Abbe Lowell has made clear, that’s what prevented Kim from getting precisely the sweet deal that Petraeus has gotten, his alleged lies to the FBI.
But I’m even more disgusted by Kendall’s cynical treatment of Kiriakou’s crime.
By contrast, Stephen J. Kim arranged for the publication of highly sensitive classified information from an intelligence report on North Korea’s military capabilities, and John C. Kiriakou revealed the identities of covert C.I.A. agents, a betrayal of colleagues “whose secrecy is their only safety,” in the words of a government attorney.
Reporters, like biographers, are frequently given access to sensitive information on the understanding that they will not publicize it, and it is hypocritical for The Times to argue for leniency for Mr. Kim and Mr. Kiriakou and harshness for General Petraeus.
Note how Kendall doesn’t describe to whom Kiriakou “revealed the identities of covert C.I.A. agents” [a factual error — Kiriakou was only accused of leaking one covert officer’s identity]? The answer is he revealed the identity of a torturer to a journalist who was working for defense attorneys defending people that torturer had tortured.
Now, clearly, Kendall does defend the right of journalists to receive such classified information if they don’t publicly disclose it. That’s what he argues Petraeus’ mistress has done (the evidence notwithstanding). So according to Kendall’s lawyering, providing that covert officer’s identity to a reporter who didn’t disclose it publicly — which is what happened in Kiriakou’s case — should have gotten Kiriakou probation.
Ultimately though, Kendall doesn’t even deal with the fact that, whatever scant privilege journalists and mistress-biographers have been granted in this country, defense attorneys have generally been granted more, for good reason. Thus, by all measures, Kiriakou made no worse, and arguably a much more legally defensible disclosure of a CIA officer’s identity than the multiple covert officers’ identities Petraeus exposed to his mistress and anyone else who decided to peruse his unlocked desk drawer.
I mean, I never really expect people in Petraeus’ vicinity to do anything but fluff his reputation; Petraeus has an infallible ability in eliciting that from people he permits to get close (or closer, in the case of Broadwell).
But I am rather surprised that a defense attorney is arguing he should have fewer privileges than a mistress-biographer.
One of just three issues this Playboy interview [marginally SFW] with Dick Cheney pressed him on (the other two being whether Bush misjudged Putin and whether Cheney’s father loved him) was whether President Bush had been briefed on the torture program.
James Rosen starts by asking whether Bush was briefed on the actual methods.
You have become publicly identified with the so-called enhanced interrogation techniques that CIA officers used when questioning suspected terrorists. Your critics call those techniques torture. To your knowledge, was President Bush briefed about the actual methods that were to be employed?
I believe he was.
It would have been useful had Rosen actually read the SSCI Torture Report, because even that explains that Bush was briefed — in 2006. “[T]he president expressed concern,” the report noted, “about the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”
Rosen then presents the disagreement between John Rizzo and George Tenet, who have said Bush wasn’t briefed, and the President himself. Cheney responds by describing a specific, undated briefing in Condi’s office.
We ask because in Decision Points, the former president’s 2010 memoir, he recalls having been briefed on the EITs. Yet former CIA general counsel John Rizzo, in his 2014 memoir, Company Man, disputes that and says that he contacted former CIA director George Tenet about it, after reading the president’s book, and that Tenet backs him up in the belief that Bush was not briefed.
No, I’m certain Bush was briefed. I also recall a session where the entire National Security Council was briefed. The meeting took place in Condi Rice’s office—I don’t think Colin Powell was there, but I think he was briefed separately—where we went down through the specific techniques that were being authorized.
Rather than pointing out that Cheney doesn’t even say Bush was at that briefing in Condi’s office (or asking for a date, which I suspect is the real secret both Bush and the CIA are trying to keep), Rosen simply asks why Cheney is certain. He then raises James Risen’s account of Bush being given plausible deniability, which Cheney quickly turns into an assessment of whether Risen has credibility rather than providing more details on when and how Bush was briefed.
Why do you say you’re certain Bush was briefed?
Well, partly because he said he was. I don’t have any doubt about that. I mean, he was included in the process. I mean, that’s not the kind of thing that we would have done without his approval.
To that point, New York Times reporter James Risen wrote in State of War: The Secret History of the CIA and the Bush Administration, published in 2006, “Cheney made certain to protect the president from personal involvement in the internal debates on the handling of prisoners. It is not clear whether Tenet was told by Cheney or other White House officials not to brief Bush or whether he made that decision on his own. Cheney and senior White House officials knew that Bush was purposely not being briefed. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability.”
I don’t have much confidence in Risen.
That’s not the question. Is what he alleges here true or false?
That we tried to have deniability for the president?
I can’t think of a time when we ever operated that way. We just didn’t. The president needed to know what we were doing and sign off on the thing. It’s like the terrorist surveillance program. You know, one of the main things I did there was to take Tenet and National Security Agency director Michael Hayden in hand and get the president’s approval for what we were doing, and there’s a classic example why I don’t believe something like this. The president wanted personal knowledge of what was going on, and he wanted to personally sign off on the program every 30 to 45 days. To suggest that somehow we ran a system that protected the president from knowledge about the enhanced interrogation techniques, I just—I don’t think it’s true. I don’t believe it.
I find Cheney’s invocation of the dragnet really, really interesting. After all, even according to Bush’s memoir, he didn’t know key details about the dragnet. Cheney told him it was going to expire on March 10 that day. Moreover, when Jim Comey briefed him the following day, he learned of problems that Cheney and others had kept from Bush.
Thus, Cheney’s invocation of the dragnet is actually a documented example of Bush not being adequately briefed.
Plus, it’s interesting given the timing. If I had to guess at this point, I would say that Bush was likely briefed on details of torture in 2004, in the wake of the Abu Ghraib scandal, not 2006. Indeed, that may explain the 7 week delay between the time Tenet asked for reaffirmation of torture approval and when it actually got fully approved — not to mention Tenet’s still inadequately explained resignation (in Tenet’s memoir, he says it was because of the “Slam Dunk” comment attributed to him in Bob Woodward’s book many weeks earlier).
Which brings us back to Cheney invoking a vaguely remembered briefing, this one in the Oval Office.
But can you say as a fact “I know that’s not true,” rather than having to surmise?
I can remember sitting in the Oval Office with deputy national security advisor Stephen Hadley and others—I think others were in there—where we talked about the techniques. And one of the things that was emphasized was the fact that the techniques were drawn from that set of practices we used in training our own people. I mean, we were not trying to hide it from the president. With all due respect, I just don’t give any credence to what Risen says there.
Cheney’s got nothing — or at least nothing he’s willing to share. And certainly nothing to document Bush being briefed before torture started.
Which is, again, what I suspect to be the issue: Bush was briefed, maybe even before the 2006 briefing the Torture Report documents. But not before the bulk of the torture happened.
There are several notable things about this interview [Playboy link: mostly SFW] with Dick Cheney (in addition to the detail that Cheney has his “slender, mustachioed housekeeper named Gus” provide a never-ending stream of lattes, prepared at the house, but served in paper Starbucks cups). One of the most striking, however, is how he responds to interviewer James Rosen’s suggestion that the Internet is democratizing.
Do you regard the internet as an intrinsically democratizing force?
[Chuckles, pauses] Oh boy, you know, we’re blue-skyin’ it now. I think it clearly has had a significant impact. “A democratizing force.” Um. [pauses]
In the sense that whenever you have a freer flow of information, that’s going to redound to the forces of good.
Yeah, but on the other hand, I suppose you could argue that it provides ways in which the government, an authoritarian government, can exert control over and monitor and keep track of what everybody is up to and what they are doing. It’s not a one-way street. It’s not necessarily—I need to think about that before I comment further.
The man who implemented an illegal dragnet admits that governments (only authoritarian ones, he suggests? or does the use of such methods make a government authoritarian?) might exert control via the Internet.
If it weren’t for Cheney’s long history implementing just that type of monitoring (certainly on the rest of the world, and to an extent on Americans), I might think he’d been hanging around with Edward Snowden!