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In 2004, the White House Considered FISA’s Exclusivity Provision to Be Top Secret

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As I have noted before, there are a number of paragraphs in the May 6, 2004 Goldsmith memo authorizing warrantless wiretapping that appear to be badly overclassified. Not only were many of the same paragraphs printed, almost verbatim, in unclassified fashion, in the White Paper released in January 2006. But many of those paragraphs contain nothing more than discussions of published statute.

Now, I hope to do a follow-up to this post on whether I’m right about this overclassification. But thus far, in asking around, no one outside of government has been able to see the logic behind the classification markings on some of these paragraphs, and the people who should know were unable to explain it.

The Overclassification of the March 13, 2003 Torture Memo

Now, I’m not just talking outtamyarse about the possibility that this is overclassified; the Bush Administration has a history of improper classification. It was a particular issue with the March 14, 2003 Yoo DOD Torture Memo. Here’s how former head of Information Security Oversight Office Bill Leonard described the classification of the memo at Russ Feingold’s 2008 secret law hearing:

The March 14, 2003, memorandum on interrogation of enemy combatants was written by DoJ’s Office of Legal Counsel (OLC) to the General Counsel of the DoD. By virtue of the memorandum’s classification markings, the American people were initially denied access to it. Only after the document was declassified were my fellow citizens and I able to review it for the first time. Upon doing so, I was profoundly disappointed because this memorandum represents one of the worst abuses of the classification process that I had seen during my career, including the past five years when I had the authority to access more classified information than almost any other person in the Executive branch. The memorandum is purely a legal analysis – it is not operational in nature. Its author was quoted as describing it as “near boilerplate.”! To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a “secret” Article to the Constitution that the American people do not even know about.

Here are Leonard’s specific complaints about the memo:

In this instance, the OLC memo did not contain the identity of the official who designated this information as classified in the first instance, even though this is a fundamental requirement of the President’s classification system. In addition, the memo contained neither declassification instructions nor a concise reason for classification, likewise basic requirements. Equally disturbing, the official who designated this memo as classified did not fulfill the clear requirement to indicate which portions are classified and which portions are unclassified, leading the reader to question whether this official truly believes a discussion of patently unclassified issues such as the President’s Commander-in-Chief authorities or a discussion of the applicability to enemy combatants of the Fifth or Eighth Amendment would cause identifiable harm to our national security. Furthermore, it is exceedingly irregular that this memorandum was declassified by DoD even though it was written, and presumably classified, by DoJ.

Mind you, the Goldsmith memo is not as bad as the March 2003 memo. As we’ll see, every single paragraph includes a classification mark (though I believe some–if not many–of those are specious). But like the March 2003 memo, this one does not describe who classified it, when it could be declassified, nor a reason for declassification. And as I explained, the people who should be able to offer an explanation (like DOJ) are unable to.

When Feingold asked about the improper classification of the March 2003 memo (see PDF 53-54), DOJ explained,

Because none of the attorneys who participated in preparing the March 2003 memorandum remains at the Department of Justice, no current DOJ employees have first-hand knowledge of the circumstances surrounding the classification of that memorandum. We have consulted the Acting General Counsel of the Department of Defense and understand from him that the memorandum was classified under the authority of DoD using that agency’s classification authority because the memorandum related to the guidance of a DoD working group charged with developing recommendations of the Secretary of Defense concerning a range of possible interrogation techniques for use with alien unlawful combatant detained at Guantanamo Bay.

In other words, they claimed the memo was classified under derivative classification of the DOD Detainee Working Group.

Derivative of the Original White House Authorizations

That background helps us at least surmise what is claimed to have happened with this memo.  It says on its front page it was,

Derived from: “Presidential Authorization for Specified Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States,” dated Oct. 4, 2001, and subsequent related Presidential authorizations [at least one line redacted]

In other words, this memo tells us it was derived from the original White House authorization of October 4, 2001 (note, not the John Yoo memo authorizing the program from the same date). From that, it’s a safe bet that, given that OLC is not a classification originator (that is, Jack Goldsmith couldn’t have classified this memo without violating the sometimes-pixie-dusted EO on classification), the White House (you know, someone like Dick Cheney?) must have classified this document as the originator of the documents of which it was a derivative.

Which brings us to what I believe to be either arbitrary, or badly manipulative, determinations of which paragraphs are classified.

Let’s start with one of my favorite examples. Page 20, footnote 17 reads, in its entirety,

17 See also 50 U.S.C. 1810 (providing for civil liability as well). (TS//SI[redacted]//NF)

Someone in government–almost certainly someone in the White House–claimed in 2004 that the mere citation of one clause of the FISA legislation and the admission that its plain language meant violation of FISA called for (in addition to the criminal penalties described in the body of the text, also classified Top Secret) civil penalties was Top Secret and compartmented.

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How to Ensure You’ll Always Have War Powers to Fight Eastasia

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As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA.

But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever war) is to sustain the claim that we were still at war in 2004, given that so many of the troops had been redeployed to Iraq. And to sustain the claim that the threat to the US from al Qaeda was sufficiently serious to justify eviscerating the Fourth Amendment.

So, they used politicized intelligence and (accidentally) propaganda to support it.

Use of the Pat Tillman Propaganda to Support Case of Ongoing War

As I’ve noted, Jack Goldsmith made the unfortunate choice to use an article reporting Pat Tillman’s death as his evidence that the war in Afghanistan was still going on.

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

That article was not really about the ongoing war in Afghanistan; rather, it told a lie, the lie that war hero Pat Tillman had died in combat, rather than in a friendly fire incident.

Pat Tillman, the Arizona Cardinals safety who forfeited a multimillion dollar contract and the celebrity of the National Football League to become a U.S. Army Ranger, was killed in Afghanistan during a firefight near the Pakistan border on Thursday, U.S. officials said yesterday.

Tillman, 27, was killed when the combat patrol unit he was serving in was ambushed by militia forces near the village of Spera, about 90 miles south of Kabul, the Afghan capital. Tillman was hit when his unit returned fire, according to officials at the Pentagon. He was medically evacuated from the scene and pronounced dead by U.S. officials at approximately 11:45 a.m. Thursday. Two other U.S. soldiers were injured and one Afghan solider fighting alongside the U.S. troops was killed.

The death of Tillman, the first prominent U.S. athlete to be killed in combat since Vietnam, cast a spotlight on a war that has receded in the American public consciousness. As Iraq has come into the foreground with daily casualty updates, the military campaign in Afghanistan has not garnered the same attention, though there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda.

Now, I say the choice was unfortunate because, in spite of the fact that Tillman’s commanding officers knew within 24 hours of his death on April 22 that it was a friendly fire incident, in spite of the fact that General Stanley McChrystal sent an urgent memo within DOD on April 29 that the death was probably friendly fire, and in spite of the fact that the White House learned enough about the real circumstances of Tillman’s death by May 1 to make no claims about how he died in a Bush speech, there’s no reason to believe that Jack Goldsmith would have learned how Tillman died until it was publicly announced on May 29, 2004.

In other words, it was just bad luck that Goldsmith happened to use what ultimately became an ugly propaganda stunt as his evidence that the Afghan war was still a going concern.

Producing Scary Memos to Justify Domestic Surveillance

I’m less impressed with the description of the role of threat assessments that we’re beginning to get.

Goldsmith’s memo includes an odd redaction in its description of the threat assessment process.

As the period of each reauthorization nears an end, the Director of Central Intelligence (DCI) prepares a memorandum for the President outlining selected current information concerning the continuing threat that al Qaeda poses for conducting attacks in the United States, as well as information describing the broader context of al Qaeda plans to attack U.S. interests around the world. Both the DCI and the [redacted] review that memorandum and sign a recommendation that the President should reauthorize [redacted name of program] based on the continuing threat posed by potential terrorist attacks within the United States. That recommendation is then reviewed by this Office. Based upon the information provided in the recommendation, and also taking into account information available to the President from all sources, this Office assess whether there is a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to authorize the warrantless involved in [redacted, probably name of program]. [my emphasis]

Now, there are any number of possibilities for the person who, in addition to the DCI, reviewed the threat assessment: John Brennan and others who oversaw the threat assessment are one possibility, David Addington or Dick Cheney are another.

But the IG Report provides another possibility or two that makes this whole passage that much more interesting:

The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al Qaeda and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President’s Authorizations of the PSP.

The Director of the Central Intelligence’s (DCI) Chief of Staff was the initial focus point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA’s terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.

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Dick, the Miniseries

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Congratulations to Barton Gellman, whose book on Cheney’s abuse of the Constitution, Angler, will serve as the basis for an HBO miniseries.

HBO has optioned the book Angler: The Cheney Vice Presidency by Pulitzer-Prize winning journalist Barton Gellman for a miniseries to be executive produced by Paula Weinstein.

The mini, which will be based on the bestselling book and the Frontline documentary The Dark Side, tells the story of Richard Bruce Cheney from his early days as Donald Rumsfeld’s protégé in the Nixon administration, to the nation’s youngest Chief of Staff under President Ford, to serving as Secretary of Defense under George H.W. Bush, through two controversial terms as Vice President under President George W. Bush. According to the producers, the project will center on Cheney’s “single-minded pursuit of enhanced  power for the Presidency (that) was unprecedented in the nation’s history.”

May the story of this abusive thug be just as popular as the Sopranos.

Gellman is on twitter taking suggestions for a lead to play Cheney. Me, I’m more interested in finding the perfect actress to play the Constitution, some damsel in distress type who needs to be saved from the evil villain.

Since I’m a pop culture failure, I’m happy to hear your suggestions in comments.

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The March–and April or May–2004 Changes to the Illegal Wiretap Program

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Apologies in advance. I’m going to be in the weeds reading the May 6, 2004 Goldsmith opinion for a little bit.

In this post, I want to point to some details of timing that, I think, suggest that the changes DOJ made to Cheney’s illegal wiretap program in 2004 included, first, a limitation on collection to people with actual alleged terrorist ties (but not just with al Qaeda), and second, a shift of the data-mining part of the program under other parts of the PATRIOT Act.

What follows is largely a wildarsed guess.

The Half-Redacted Timing of the Post-Hospital Changes

As I noted in my working thread, DOJ has redacted part of the date of the 2004 modifications in the table of contents and pages 9 and 11. But on page 16, it has left unredacted a reference to a March 19, 2004 redaction. The opinion itself gives partial explanation for this: Goldsmith refers to “those” modifications, plural, on page 9, and describes a “series of changes” on page 11. The existence of more than one modification is confirmed by the IG Report, which says,

Notwithstanding Gonzales’s letter, on March 17, 2004 the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported. The President’s directive was expressed in two modifications to the March 11, 2004 Presidential Authorization.

Though note the slight discrepancy between Goldsmith’s reference to a “series” (which to me means more than two) versus the IG reference to two modifications.

Now, the redactions and common sense suggest when at least one of the other changes must have taken place. Since Goldsmith wrote the memo on May 6, the redacted phrase can only be “April” or “May.” Given the spacing in the redactions–particularly the one in the second line of the only complete paragraph on page 11, which takes up the same space as the 9 characters “concernin” in the line below–it is unclear which it would be. It might read “and April ” or it might read “and May, “. It is worth noting that if the March 11 authorization were a 45-day one, it would have expired on April 25 and left, without this May 6 opinion, the program working without any basis still. Yet SSCI has told us the March 11 authorization was for “not more than 60 days,” which would have extended to May 5. For these and other reasons, my guess is May (suggesting that Goldsmith waited until the last changes were made to write his memo), but that’s just a guess. And DOJ, obviously, isn’t telling.

[Update: Thanks to William Ockham, who did the kerning work, it looks like “May” is correct.]

The March 19 Modification Limits Content Collection to Terrorist Conversations

On page 16, Goldsmith writes,

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [~ 6-7 word redaction] He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group

Further down that page, Goldsmith begins the list of the only three things this opinion authorizes. The first is:

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Goldsmith’s language here is remarkably similar to that he used in some of the letters he wrote at precisely the same time limiting the torture program. In both cases, he is trying to impose limits on a program that has already exceeded those limits. That, plus the reference to Bush’s “clarifi[cation]” of the scope of the program suggests the limit on intercepting the content of conversations in which one party is a terrorist is new.

I’ll have much more to say about this. But note that Goldsmith’s limit here does not match the terms of the Afghan AUMF, which is limited to those who were directly tied to 9/11.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

In other words, while the requirement that the program collect content only from those with a tie to a terrorist may be a new limit imposed in 2004, it also seems to exceed the very AUMF that Goldsmith was newly relying upon to authorize the program.

Goldsmith does have one out for that problem. As he notes elsewhere, the Afghan AUMF language on terrorism is repeated (and actually expanded) in the Iraq AUMF.

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Did you know that the Iraq AUMF mentions “terrorist” or “terrorism” two more times–19–than it mentions “weapon”–17?

So writing in 2004, I guess, Goldsmith could claim that a still-active AUMF authorized war against terrorism more generally. Now, we apparently just avoid written AUMFs altogether.

And with it, he authorized the interception of content of not just al Qaeda affiliates conversations, but of any terrorist who was at war with the United States. I wonder if Hamas and FARC are included in that?

The April or May Change(s)

But that’s just the change DOJ is willing (sort of) to let us know about. What about the other changes?

While I can’t say for sure, consider the following data points.

First, note that Robert Mueller’s chronology of the warrantless wiretap confrontation had what used to seem like a bizarre end date. He shows multiple contacts a day with Jim Comey until March 17. Shortly thereafter on March 19, it appears, Bush at least narrowed the content collection to actual alleged terrorist conversations. But then there’s a March 23 meeting between Mueller and Dick Cheney, at the Vice President’s request and in his office.

Next, remember there’s a great deal of evidence–including reporting during the Protect America Act debate–to suggest that data mining was one of, if not the key, problem behind the hospital confrontation.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

Then, note that the day after Mueller’s meeting with Cheney, FBI moved toward actually using Section 215 of PATRIOT, which they had not done previously.

Finally, consider some of the changes made to the way Section 215 and NSLs were used that year–effectively using them to collect call data–and Section 215 specifically to support a secret program in 2005.

So Lichtblau suggests that the big change–the one DOJ won’t let us know about–has to do with searches of massive databases of records of phone calls and email messages of millions of Americans. And on they day after a private Mueller meeting with Cheney but probably before the second (at least) big change from spring 2004, FBI starts using the provision they would go on to use, some time in 2004, to collect call data. (And sometime in 2005 Section 215 came to be used to support a secret program unto itself.)

In any case, this is a wildarsed guess. But it appears likely that DOJ stopped acquiring metadata on calls to use in data mining in one fashion, and instead started using Section 215 and trap and trace requests to get the data.

Given the Bybee memo we’ve recently discovered which seems to support fairly expansive use of databases, however, I’m guessing they didn’t stop doing data mining of the call data.

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Who Was–and Was Not–in on Rummy’s “Plan”

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Gawker has liberated Iraq some of Rummy’s papers on Iraq and Afghanistan. (h/t Rosalind) And while I hope to return to the series on John Walker Lindh (79ff) and the memo, cc’ed to the public affairs people, in which Rummy ordered Jim Haynes to write a memo saying that the way DOD was detaining people was “perfectly legal,” (75ff)

But I just wanted to make a real minor point about the memo he sent on December 13, 2003 to Dick Cheney, cc’ed to Andrew Card and Condi Rice (3):

Attached are some remarks I have been making that talk about planning for post-war Iraq.

With opponents saying we had no “plan,” it is important that we keep referring to our “plan.”

This was the Secretary of Defense sending a messaging note to the Vice President, cc’ing the Chief of Staff and National Security Advisor. It might be the kind of thing that the public affairs office would generate, not the Secretary of Defense. And it’s certainly not the kind of thing you’d normally see the VP as primary recipient of.

And of course, note who’s missing? Colin Powell. Who of course knew Rummy didn’t have a plan.

Interestingly, page 39ff makes it clear that Rummy had not received a copy of the White House propaganda piece, “A Decade of Deception and Defiance,” before he read about it in the NYT (in either a Sanger/Bumiller or a Patrick Tyler piece).

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Hillary’s Tortured Democracy and the Suleiman “Assassination Attempt”

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At a security conference in Munich today, Hillary Clinton announced that America’s torturer, Omar Suleiman, must be in charge of Egypt’s “transition” to “democracy.”

The US secretary of state Hillary Clinton today signalled how far the US has swung its support behind vice-president Omar Suleiman and the transition process he is leading in Egypt.

Clinton was speaking at a security conference in Munich today, where the watchword on Egypt was the need for orderly transition.

In her most striking remarks, the US secretary of state said: “There are forces at work in any society, particularly one that is facing these kind of challenges, that will try to derail or overtake the process to pursue their own agenda, which is why I think it’s important to follow the transition process announced by the Egyptian government, actually headed by vice-president Omar Suleiman.”

This, just hours after Obama reiterated that “it’s not up to us” to determine the future of Egypt.

See the FT for an even more detailed description of Hillary’s address.

Meanwhile, our government appears to be the only entity–aside from Fox News–pushing a totally unconfirmed report that Hillary’s choice to lead Egypt’s “democracy” survived an assassination attempt the other day.

I first learned about the rumor when David Corn reacted on Twitter to a Fox reporter asking about it.

Q: Do you know anything about assassination attempt on #Egypt VP? G: I’m not going to get into that question.//Huh?

I found Robert Gibbs’ response (at least as Corn captured it–the WH has not released a transcript) fascinating. You would think if Gibbs knew the allegation was false, he’d say so in no uncertain terms. If he didn’t know about it, he’d tell reporters he’d get back to them on it. But instead, “I’m not going to get into that question.”

Which is not dissimilar from the way Hillary used this alleged assassination attempt in Munich. In spite of the fact that only Fox has reported it in the US, the German diplomat who at one point seemed to confirm subsequently retracted it, and an Egyptian official has denied it, Hillary used the alleged assassination to support her case that stability is key in the transition to Egyptian “democracy.”

U.S. Secretary of State Hillary Clinton said at the conference that the news of the assassination attempt reflects the challenges of restoring stability in Egypt.

While I haven’t found a direct transcription of this yet, it appears that, like Gibbs, Hillary acknowledged the existence of an “assassination plot” that only Fox seems to know exists, without directly confirming it, and then used it to emphasize how the danger of such things demonstrates the need for our torturer to oversee a stable transition in Egypt.

I’m having a bit of deja vu this morning. Last time I remember these kinds of linguistic tricks, Dick Cheney and George Bush were using them to convince us to forcibly impose democracy on Iraq in 2002-2003.

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Colombia Refuses to “Look Forward”

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In Colombia, apparently, you get arrested when you oversee illegal domestic wiretapping.

Colombia’s Prosecutor General ordered the arrest of Jorge Noguera, a former director of Colombia’s state intelligence agency DAS, for the his alleged involvement in the illegal spying on government opponents.

Noguera, who was director of the DAS between 2002 and 2006, is suspected of having set up the illegal activities of the DAS that included wiretapping supreme court magistrates, journalists, human rights organizations and opposition politicians.

Imagine if Michael Hayden (who oversaw the NSA when Cheney set up his illegal wiretap program) or John Brennan (who was in charge of the departments that chose whom to target with the system) got arrested for their role in the program?

Hell, imagine if Cheney himself were arrested (President Alvaro Uribe’s Chief of Staff is reportedly one target of this investigation)?

Pretty crazy, isn’t it, imagining what it would be like to live in a country with a functioning rule of law … like Colombia?

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Obama Signs Non-Signing Statement

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Obama has signed the Defense Authorization Act that barred funding for closing Gitmo. And his signing statement–really more of a complaint than an actual signing statement–reads in part:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met.  Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us.  Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.  We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries.  The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities.  Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers.  Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Now, don’t get me wrong, I’m happy Obama hasn’t issued a real signing statement (a la “Dear Congress: Fuck you. Cheney George”). But this is basically a big punt. It doesn’t talk about constitutional limits on the President (again, of that I’m glad). It doesn’t note that the defense authorization only limits what he can do with defense funds, not DOJ or DHS funds (as ACLU noted). Neither does he use ACLU’s other suggestion: to point out to Congress that these provisions amount to a Bill of Attainder.

At the same time, he does argue for the importance of these issues: “The prosecution of terrorists in Federal court … must be among the options available to us” … “Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries.” He should practice these statements in front of a mirror, along with his point about how they affect national security, because making these statements forcefully in some kind of public venue might actually pressure Congress on this point.

But ultimately, the statement accepts the statements as is–so long as they don’t get bigger!

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

From my perspective, I guess, this punt is as good as can be expected. I prefer this to an expansive signing statement of the Dick Cheney variety. I recognize that the time for Obama to act on this was two years ago and two weeks ago, not now.

But hey! At least he said nice things about civilian courts!

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Oops! Bribing Nigeria for Cheney’s Freedom Not Legal

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A lawyer in Nigeria has reminded the country’s anti-corruption watchdog that the recent deal buying Cheney’s freedom for $35 million is not legal.

In a letter to Nigeria’s anti-corruption watchdog, Osuagwu Ugochukwu, a prominent lawyer in Abuja, said the withdrawal of charges against Cheney was a breach of the law.

“We know as a point of law that once a criminal charge has been filed in a competent court, issue of penalty of fine is for the courts to impose and not parties,” he wrote. “Hence, we are shocked to hear that EFCC imposed a fine on an accused person. We also know as a point of law that criminal matters cannot be settled out of court as in civil matters in Nigeria.”

And a newspaper editorial makes the fairly obvious point that if corporations can keep buying the freedom of its executives, then those executives will never have an incentive to follow the law.

The risk of solving one criminal act through the plea bargain option amounts to a mere slap on the wrist and subtly telling the guilty firm and its personnel to “go and sin no more”. It does not paint a good image for Nigeria, especially in the world’s corrupt nations index where we are currently featuring notoriously.

We therefore condemn in strong terms this kind of under the table settlement. The same thing happened in the Siemens bribery scam, and this is making Nigeria look like a country where money can buy justice. More importantly, the Halliburton case questions the seriousness of government in holding corrupt foreign firms and their officials accountable for their action, while on the other hand encouraging and patronizing companies that have not only confessed corrupt practices, but are not known to respect wholesome business ethics.

Only a painstaking trial and possible conviction, if found guilty, would have forced Halliburton to change its corrupt ways of doing business in Nigeria.

But Nigeria’s anti-corruption watchdog, in response to Ugochukwu, pointed out that such plea bargains are standard in countries like the UK and US.

And, without addressing the move’s legality, the head of the anti-corruption watchdog agency defended the move, saying that it is a “best world practice” used in more developed countries.

“The US and the UK governments are practicing it. Where you cannot successfully sustain a charge in court and you want to recover, then instead of losing the case, losing the money, then you opt for plea bargaining,” Farida Waziri, head of the watchdog agency, said,

Of course, the US got an even bigger bribe from KBR — $402 million — to dismiss these charges, without even having to threaten Cheney with jail time. So I guess Nigeria is left only to aspire to the “best world practice” of getting bigger bribes from corporations guarding the freedom of their executives.

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Did Brennan and Napolitano Have Advance Warning of the UK Arrests?

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Now that I’ve fetched Mr. EW from his 48 hour trip to Philadelphia from Dublin, my entire family will be in one place for the next day or so, so don’t expect much posting from me in that period.

But I did want to point to this detail about the alleged terrorists arrested the other day in the UK: they were allegedly plotting to hit the US Embassy.

The U.S. embassy in London was a target of a group of men arrested last week in Britain and charged with conspiracy to cause explosions and preparing acts of terrorism, the U.S. State Department said on Monday.Twelve men were arrested on December 20 in what British police said were counter-terrorism raids essential to protect the public from the threat of attack.

Which brings me back to my point of the other day: the possibility that Director of National Intelligence James Clapper did not know of the investigation and arrests before they happened. One possibility I suggested, for example, is that the British didn’t share details of the investigation with us because they had been burned (by Dick Cheney and Jose Rodriguez) in the past.

Only, this detail sort of extends my point. While it’s clear John Brennan and Janet Napolitano knew of the by then widely-reported arrests by the time Diane Sawyer asked James Clapper about them, had they known the US Embassy was a target (and that the news would be published in the next few days), they probably wouldn’t have claimed there was no tie between those terrorism arrests and threats to the US. Indeed, there’s some indication the entire government had no clue about that fact, given that ODNI’s statement about Clapper suggested that Clapper wasn’t immediately briefed because it didn’t appear there was a “homeland nexus.” Now maybe “homeland nexus” is a weasel way of saying we no longer consider our embassies overseas–not even the one in our closest ally’s capital–to be a target (if so, someone should tell Ahmed Ghailani’s lawyers, and all the other terrorists convicted in the US of striking US embassies overseas).

But the more likely possibility, given what Brennan, Napolitano, and Clapper have said is that the US–the entire government–was left out of the loop on this investigation. That’s certainly Britain’s prerogative. You never know when some Dick Cheney figure is going to sabotage a British investigation on them, after all.

But it does seem to be a notable data point.

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