Dick Cheney

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Pat Buchanan, Dick Cheney, and American Exceptionalism

Back when Dick Cheney was being hailed for calling out Donald Trump’s racism, I noted one aspect of that radio interview that largely escaped notice: his embrace of the myth that the American continent was empty when his Puritan ancestors got here.

Cheney didn’t stop there. He then emphasized that one of his ancestors arrived as a religious refugee, a Puritan. “A lot of people, my ancestors got here, because they were Puritans.” Cheney suggested, then, that the place was empty when William Cheney arrived in the 17th century. “There wasn’t anybody here, then, when they came.”

There has been little recognition that, in speaking out against the ban on all Muslims, Cheney either unintentionally or intentionally propagated another racist myth, that there “wasn’t anybody here” when the Puritans came.

It’s unclear whether Cheney meant there was no formal state to exclude the Puritan refugees, or whether he really meant — which is what it sounds like — that the continent was empty in the 17th century.

But it seems like a very subtle dog whistle, the kind Republicans used to limit themselves to, suggesting that it is OK for white men to colonize a previously occupied space, even while espousing a kind of tolerance for what we would recognize as religion. By claiming “there wasn’t anybody here” when colonists first came to America, Cheney normalizes conquest, the same kind of conquest he demanded in the Middle East a decade ago, which has so badly exacerbated extremism and continued to make us insecure.

The degree to which Cheney’s perpetuation of that “empty America” myth went largely unnoticed is worth remembering as you read this Pat Buchanan piece, which complains that middle aged whites are killing themselves because their children are learning that America wasn’t actually empty.

A lost generation is growing up all around us.

In the popular culture of the ’40s and ’50s, white men were role models. They were the detectives and cops who ran down gangsters and the heroes who won World War II on the battlefields of Europe and in the islands of the Pacific.

They were doctors, journalists, lawyers, architects and clergy. White males were our skilled workers and craftsmen — carpenters, painters, plumbers, bricklayers, machinists, mechanics.

They were the Founding Fathers, Washington, Adams, Jefferson and Hamilton, and the statesmen, Webster, Clay and Calhoun.

[snip]

The world has been turned upside-down for white children. In our schools the history books have been rewritten and old heroes blotted out, as their statues are taken down and their flags are put away.

Children are being taught that America was “discovered” by genocidal white racists, who murdered the native peoples of color, enslaved Africans to do the labor they refused to do, then went out and brutalized and colonized indigenous peoples all over the world.

In Hollywood films and TV shows, working-class white males are regularly portrayed as what was once disparaged as “white trash.”

Unlike Cheney’s embrace of the empty America myth, Buchanan’s is (rightly) getting a lot of attention. I obviously don’t endorse his views, but I do think they explain the strength of Trump. Buchanan not only talks about declining economic prospects of white working class men, the relatively improved fortunes of people of color, but especially about the plight of white men losing their myths of superiority, losing the myth that white men made this country and led the world without the often-coerced labor and deaths of lots of brown people.

Trump’s lies, Buchanan suggests, permit these white men to believe their myth again, the myth of white American exceptionalism.

Here’s the thing. A lot of people are linking Buchanan’s post are pointing just to those far right nutjobs whose enthusiasm has fueled Trump’s rise this year.

But — as the example of Dick Cheney perpetuating the very same myths, even while criticizing Trump’s overt racism — that underlying myth extends well beyond the far right nutjobs, well into mainstream Republican and even Democratic ideology.

America has a Donald Trump problem — one that its diversity will probably defeat, at least in the short term. But underlying that Donald Trump problem is a desperate insistence on clinging to the myth of American exceptionalism, with its more offensive parts even embraced in the mainstream. For the sake of the white men who’ve relied on those myths for their sense of dignity, but also to prevent future Trumps, it is time to start replacing that exceptionalist myth with something else.

Imperialist Robert Kagan Disavows the Bureaucracy of Immense American Presidency He Championed

The chattering class is in love with this Robert Kagan op-ed warning of Donald Trump bringing fascism,

not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.

I suppose I’m unsurprised that Beltway insiders are so gleeful that this Hillary-endorsing Neocon has turned on Republicans in such a fashion. Or, perhaps more importantly, that they’re so thrilled someone with such a soapbox has written a warning of impending fascism that so neatly disavows any responsibility — for Kagan himself, and by association, for other insiders.

But there are a couple of real problems with Kagan’s screed.

First, Kagan would like you to believe that Trump’s success has nothing to do with policy or ideology or the Republican party except insofar as the party “incubated” Trump.

But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him.

Kagan gets Trump’s relationship with the Republican party exactly reversed. The party did not in any way incubate Trump. 80’s style greed and cable TV incubated Trump, if anything. What the Republican party has long incubated is racism. Trump just capitalized on that and pushed it just … a … bit … further than Republican dogwhistles traditionally go, in a year in which the GOP had lost a great deal of its credibility.

Which is why Kagan is also wrong in claiming that Trump isn’t about policy or ideology. I admit that Trump has always shown great deal of ideological flexibility, both before and during this run. But he has been consistent on two points: that racism, but also protectionism. There are a lot of reasons those two ideological keystones have appealed this year, but one has to do with the failures of globalization and the related American hegemonic project it assumes. That’s ideology and policy, both Trump’s, but also DC’s, including Kagan’s.

Kagan goes on to deal with these two issues.

We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.

Note the assumption that Trump’s protectionism is not an economic remedy but some unstated alternative is? Note Kagan’s treatment of racism, an ideology, as fear divorced from that ideology of white American exceptionalism?

Fear!! Kagan wants to boil Trump’s popularity down to fear! A guy who has had a central role in ginning up serial American aggressive wars is offended that someone wields fear to achieve political power!!! And having done that, this warmonger says the ability to gin up fear is precisely what our Founders — the men who set up three competing branches of government, each jealously guarding its power — were concerned about.

Which brings me to the Kagan argument that most baffles me. After bewailing Republican politicians’ refusal to stand up to Trump’s demagoguery, Kagan then argues (though I’m not sure he even realizes he’s making this argument) that Article I and Article III (the latter of which goes entirely unmentioned in this op-ed) will be powerless to stop Trump and his “legions” once he becomes president.

What these people do not or will not see is that, once in power, Trump will owe them and their party nothing. He will have ridden to power despite the party, catapulted into the White House by a mass following devoted only to him. By then that following will have grown dramatically. Today, less than 5 percent of eligible voters have voted for Trump. But if he wins the election, his legions will comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then? Certainly not a Republican Party that laid down before him even when he was comparatively weak. And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

Never mind that Kagan describes general election numbers that simply don’t exist in our democracy. What he’s really complaining about is that a President — one he happens to distrust and dislike — would have “the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military.”  Of course, Kagan focuses not on the government as a whole, but on the Deep State and the Justice Department that has increasingly become an integral part of it.

The guy who, for years, championed the unfettered exercise of the Deep State in the hands of people like Dick Cheney is now troubled about what would happen if Donald Trump got the same powers Dick Cheney had. And for what it’s worth, while I don’t buy Michael Hayden’s claim the CIA would resist a President Trump’s order to torture (Hayden’s successors at NSA and CIA will likely do just what Hayden himself did, capitulate to unconstitutional demands), I also know that neither Trump nor anyone in his immediate orbit has the kind of bureaucratic mastery of the Deep State that Dick Cheney had.

One more really important point: the Deep State — those tools Kagan is horrified Trump might soon wield — got so powerful, creating the danger that a demagogue like Trump might tap into them fully formed, largely in the service of an imperial project significantly sold by Robert Kagan. Kagan has claimed to be selling “Democracy™” around the world, but all along that project has rotted our own democracy here at home.

Kagan (and his fellow imperialists) did that. Not Trump. Trump would just take advantage of the bureaucratic tools Kagan’s propaganda has served to justify.

I’m not denying Donald Trump is a huge threat to American democracy (though I happen to think Hillary’s foreign policy will come with great risks and costs as well). I’m saying that Robert Kagan is not the one to make this argument — at least not without a whole lot of soul searching and commitment to change the underlying empowerment of “the immense powers of the American presidency.”

But Kagan doesn’t want that. Rather, he just wants to hand those powers, still unchecked, to Hillary Clinton.

What We Don’t Know about What Rummy Didn’t Know

Screen Shot 2016-01-28 at 10.45.31 AMEarlier this week, Politico did a story on a report done for Donald Rumsfeld in summer 2002 about what the Joint Chiefs of Staff’s Intelligence team knew about Saddam’s WMD program.

There are two specifics of significant note the Politico report doesn’t get into. First, it notes that the report itself was dated September 5 and Rumsfeld passed it on to Richard Myers, saying, “It is big” on September 9. But it neglects one significant detail about the date.

The report said “we think a centrifuge enrichment program is under development but not yet operational.” Someone — presumably either Rummy or Myers — marked that passage in the Powerpoint. That same person also marked an earlier slide that said “Our assessments rely heavily on analytic assumptions and judgment rather than hard evidence,” though that person did not mark the following line that read, “The evidentiary base is particularly sparse for Iraqi nuclear programs.”

Those dates are significant, however, because between the time the report was finished on September 5 and Rummy passed it on on September 9, both he and Myers did the Sunday shows as part of the aluminum tube bonanza, which itself was premised on the claim that Iraq had tried to obtain those tubes because they “were intended as components of centrifuges to enrich uranium.” (On Saturday, at least Rummy and possibly Myers spent the day at Camp David with other top Bush officials and Tony Blair planning to get their war on.)

To be fair to them both, they didn’t say anything that greatly varied from this report (in any case, both may not have read it yet) or even directly address the centrifuge story.

The secretary also asserted that Iraq is on the list of the world’s terrorist states, and under Saddam Iraq continues to possess chemical and biological weapons, and seeks to acquire nuclear arms, as well. As such, he said, Iraq represents a clear and present danger to America — and to the world.

Show host Bob Schieffer asked Rumsfeld if the United States was close to going to war against Iraq. The secretary said President Bush has decided that a regime change in Iraq is necessary, but hasn’t yet decided how it would be accomplished. The nation’s leader is slated to go before the United Nations to “make what he believes to be is a recommendation to the international community and to the world” about what to do about Saddam and Iraq, Rumsfeld said.

Iraq, Rumsfeld said, has invaded its neighbors, persists in violating U.N. resolutions it had agreed to, and continues to amass weapons of mass destruction, creating a significant problem for the international community.

The world can approach the problem of Saddam in a number of ways, Rumsfeld remarked. However, he emphasized that he agrees with the president in that doing nothing is not an option.

People seeking a “smoking gun” — absolute, conclusive evidence that Saddam has nuclear weapons — Rumsfeld noted, is like developing a case in a court of law by proving a person’s guilt without a reasonable doubt.

“The way one gains absolute certainty as to whether a dictator like Saddam Hussein has a nuclear weapon is if he uses it. And that’s a little late,” Rumsfeld emphasized.

The secretary pointed out how some U.S. intelligence on Iraqi capabilities may not be revealed to the public for good reason. Putting certain intelligence out to the public could “put people’s lives at risk,” he noted. However, the secretary said more information about Iraq would likely become known in the days and months ahead.

Rumsfeld noted there is also “a category of things we don’t know.” After Operation Desert Storm, he noted, American officials discovered that Saddam was six months to a year away from developing a nuclear weapon. The best previous intelligence had estimated it would take two to six years for Saddam to obtain a nuclear bomb, Rumsfeld said. [my emphasis]

Indeed, while Rummy used a variant of the “smoking gun” line Condi Rice used, he presented it more as a legalistic phrase than the fearful line the National Security Advisor delivered it as. He stressed that US intelligence was withholding information. And he admitted that there was stuff “we don’t know,” though suggested that in the past the stuff we didn’t know ended up being that Saddam was closer to getting nukes than previously believed.

And Myers, too, emphasized Saddam’s quest to improve his nuke program.

Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, reiterated to ABC This Week host Sam Donaldson that Saddam Hussein has chemical and biological weapons.

Saddam, Myers added, also wants “to better his nuclear program.”

“He’s going to go to any means to do that, we think,” he said. “Our estimate is at this point he does not have nuclear weapons, but he wants one.”

Basically, though, it appears that after Rummy and Myers had just been put on the Sunday shows to reinforce the hysteria Condi and Cheney were sowing, Rummy read a report and learned that his own intelligence people were none too sure about what he and Myers had just said, at which point he sent it to Myers and said “it is big.”

Screen Shot 2016-01-28 at 11.28.13 AMAt that point, it was probably too late.

The other thing Politico didn’t note, however, is that the actual Powerpoint was not entirely declassified. Indeed, the entire last page was redacted under 1.4 a, b, and c exemptions.

1.4(a) military plans, systems, or operations;

1.4(b) foreign government information;

1.4(c) intelligence activities, sources or methods, or cryptology;

I find that interesting because the Iraq foreign government information in the presentation is no longer considered sensitive, so it presumably cites some other foreign government information.

I suspect the redacted information either cites the equally dubious British intelligence claiming Saddam had WMD or that it invokes Saddam’s ties to terrorism (which both Rummy and Myers did mention in their Sunday appearances). If it’s the latter, it would mean the government is still trying to hide — as it is with a letter Carl Levin tried but failed to get declassified before he retired — the utterly bogus claims about Saddam having ties to Al Qaeda that were partially used to justify the war.

All of which is to say, we know that Rummy probably learned a bit more about what his unknown unknowns immediately after going on a the Sunday shows making a claim about known unknowns. But there’s still something about what Rummy didn’t know that we don’t know.

Obama Bypassed OLC on Bin Laden Killing

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dick Cheney Prepares to Fearmonger Again on Aluminum Tube Day

Richard_Cheney_2005_official_portraitOn 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.

Screen Shot 2015-08-24 at 12.37.20 PM

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?

 

 

In 2003, OLC Doubled Down on Unlimited (de)Classification Authority for the President

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.

Alberto Gonzales: The Counsel Represented by Counsel and Babysat by Cheney’s Counsel

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.

In Newly Released IG Reports, Administration Redacted Discussion of the Bill Binney Option

One of the most fascinating aspects of the IG Reports Charlie Savage just liberated is how they redacted the NSA IG Report, a draft of which Edward Snowden already got released.

Consider the following redactions.

NSA redacts the discussion that shows they were already spying

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 Haydens 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.)

NSA redacts the Cheney paragraph

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.

NSA Redacts the Binney Option

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.

Dick Cheney Gets Judy Miller to Serve as His Cut-Out, Again

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).

Enter Dick Cheney.

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.

Did Authorizing Torture Make the National Security Council an Agency Subject to FOIA?


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?

[snip]

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.

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