Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).
The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.
Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.
Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.
That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.
Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.
First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.
Boy how wrong was I. Boy how inadequately cynical was I.
Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.
Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:
It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.
Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?
In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.
On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.
Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.
Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.
By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.
If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.
Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.
I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).
A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.
The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.
I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.
As if the AP and the Administration weren’t already enjoying a contentious relationship, today it details the Administration’s use of second, secret emails.
Some of President Barack Obama’s political appointees, including the secretary for Health and Human Services, are using secret government email accounts they say are necessary to prevent their inboxes from being overwhelmed with unwanted messages, according to a review by The Associated Press.
The scope of using the secret accounts across government remains a mystery: Most U.S. agencies have failed to turn over lists of political appointees’ email addresses, which the AP sought under the Freedom of Information Act more than three months ago. The Labor Department initially asked the AP to pay more than $1 million for its email addresses.
Google can’t find any reference on the Internet to the secret address for HHS Secretary Kathleen Sebelius. Congressional oversight committees told the AP they were unfamiliar with the non-public government addresses identified so far by the AP.
Ten agencies have not yet turned over lists of email addresses, including the Environmental Protection Agency; the Pentagon; and the departments of Veterans Affairs, Transportation, Treasury, Justice, Housing and Urban Development, Homeland Security, Commerce and Agriculture. All have said they are working on a response to the AP.
Now, the Administration claims people are doing this just to cut down on clutter in their email boxes. But thus far, it appears that the second emails aren’t being turned over under FOIAs or, if they are, aren’t being identified as belonging to the principal.
And so we move into another chapter of the Executive Branch hiding or deleting emails to avoid transparency, which of course goes back to Poppy Bush’s efforts to hide PROFS notes as part of the Iran-Contra coverup. The National Security Archive’s timeline, of course, misses the several efforts under the Bush Administration to either delete massive amounts of emails, particularly those from sensitive days of the CIA Leak Investigation, and the political staff’s use of RNC email addresses to take emails entirely out of Presidential Records Act retention.
This is getting tiresome: we’re going on 5 presidential administrations now that have played games with emails, a tedious series of efforts to avoid transparency.
Maybe it’s time for Congress to put some real teeth onto laws requiring the President to retain such records?
The Internet is abuzz today with Sheldon Adelson’s announcement that he has already donated $10 million to Mitt Romney’s SuperPAC and plans to provide limitless donations to defeat Obama.
Forbes has confirmed that billionaire Sheldon Adelson, along with his wife Miriam, has donated $10 million to the leading Super PAC supporting presumptive Republican presidential nominee Mitt Romney–and that’s just the tip of the iceberg. A well-placed source in the Adelson camp with direct knowledge of the casino billionaire’s thinking says that further donations will be “limitless.”
But the attention is mostly focused on the sheer numbers he’s talking about, not what it suggests that Adelson–who already spent buckets of money to try to defeat Mitt in the primary–has now promised limitless donations to defeat Obama.
This is about Likud trying to decide the American elections.
Adelson doesn’t hide the fact that this donation is about Israel as much as it is Obama’s “socialism.”
Adelson, this source continues, believes that “no price is too high” to protect the U.S. from what he sees as Obama’s “socialization” of America, as well as securing the safety of Israel. He added that Adelson, 78, considers this to be the most important election of his lifetime.
Nor is it surprising he’s doing this. More than he is for any of these American politicians, Adelson is Bibi Netanyahu’s Sugar Daddy. And Obama has been remarkably successful thus far in stymying Bibi’s goal of forcing the US to attack Iran. In addition to the sanctions regime that has brought about negotiations, in recent months, the Administration has leaked both a white paper showing that an Iran attack would do nothing but set off a regional war and news of the bases in Azerbaijan Israel would use if it unilaterally attacked Iran. David Sanger quoted Presidential briefers and Joe Biden–Bibi’s old nemesis–blaming Israel for freeing StuxNet, possibly intentionally. Leon Panetta has, on the record, told the entire world, including Iran, when Israel planned to attack. (I actually thought Panetta’s latest 60 Minutes appearance might have been an attempt to placate Israel.)
It may appear to us that the Administration continues typical American policy of capitulating to Israel. But the Obama Administration has taken surprisingly strong measures to push back against Israel.
And now Sheldon Adelson has promised to use unlimited funds to get rid of President Obama.
As much as the money concerns me, that’s not what I worry about the most. The Israelis have never been shy about running off-the-books operations to influence our policies. Indeed, they played a role in Iran-Contra, the start of which goes back to the last October Surprise plot to make sure a Democrat didn’t get reelected in 1980. And the state of affairs in Israel’s neighborhood (both Syria and Egypt would be excellent candidates, though if I were Turkey I’d be cautious, too) is such that it would be very very very easy to create an October Surprise that would make it a lot harder for Obama to get reelected.
Bibi’s Sugar Daddy just announced the world he will do anything in his power to defeat Obama. You can be sure Bibi feels the same way.
Update: Iran/Israel confusion fixed, h/t vl.
In “honor” of the 25th Anniversary of the press conference admitting to Iran-Contra on Friday, National Security Archive liberated memos an aide to Special Prosecutor Lawrence Walsh, Christian Mixter, wrote assessing the criminal liability of Reagan and Poppy Bush. The report found that a loophole Ed Meese suggested–basically using National Security Act to trump the Arms Control Export Control Act–would make it difficult to prosecute Reagan for hiding transfers of money.
On Reagan, Mixter reported that the President was “briefed in advance” on each of the illicit sales of missiles to Iran. The criminality of the arms sales to Iran “involves a number of close legal calls,” Mixter wrote. He found that it would be difficult to prosecute Reagan for violating the Arms Export Control Act (AECA) which mandates advising Congress about arms transfers through a third country-the U.S. missiles were transferred to Iran from Israel during the first phase of the operation in 1985-because Attorney General Meese had told the president the 1947 National Security Act could be invoked to supersede the AECA.
As the Iran operations went forward, some of Reagan’s own top officials certainly believed that the violation of the AECA as well as the failure to notify Congress of these covert operations were illegal-and prosecutable. In a dramatic meeting on December 7, 1985, Secretary of Defense Caspar Weinberger told the President that “washing [the] transaction thru Israel wouldn’t make it legal.” When Reagan responded that “he could answer charges of illegality but he couldn’t answer charge that ‘big strong President Reagan passed up a chance to free hostages,” Weinberger suggested they might all end up in jail. “Visiting hours are on Thursdays,” Weinberger stated. As the scandal unfolded a year later, Reagan and his top aides gathered in the White House Situation Room the day before the November 25 press conference to work out a way to protect the president from impeachment proceedings.
And you couldn’t prosecute Reagan for lying to the American people because doing that is not a crime.
Mixter also found that Reagan’s public misrepresentations of his role in Iran-Contra operations could not be prosecuted because deceiving the press and the American public was not a crime.
As to Poppy, he was intimately involved in all the same close calls decisions Reagan was, but since he was junior to Reagan, you couldn’t prosecute him either. (The memo was written before it became clear Poppy had been hiding his diaries from the investigation.)
The NSA report on the documents–particularly this detail…
The memorandum on criminal liability noted that Bush had a long involvement in the Contra war, chairing the secret “Special Situation Group” in 1983 which “recommended specific covert operations” including “the mining of Nicaragua’s rivers and harbors.” Mixter also cited no less than a dozen meetings that Bush attended between 1984 and 1986 in which illicit aid to the Contras was discussed.
… Reminded me of Sy Hersh’s description of a meeting at which the Iran-Contra dead-enders in the W Administration plotted how to improve on Iran-Contra.
They set about and talking about how to sabotage oversight. And what is the model for sabotaging oversight? The model turned out to be the Bill Casey model. Continue reading
One short phrase in an article bmaz alerted me to yesterday set my blood to boiling. I fumed about it off and on through the rest of the day and even found myself going back to thinking about it when I should have been drifting off to sleep.
The phrase? “Good faith”
Here’s the phrase in the context of the article:
The U.S. Justice Department’s stepped up enforcement in the pharmaceutical industry has struck “the fear of God” in executives, a top lawyer at GlaxoSmithKline said today, addressing whether prosecutors have gone too far in building cases rooted in business conduct.
The panel’s moderator, Jonathan Rosen, a white-collar defense partner in the Washington office of Shook, Hardy & Bacon, described what he called a “highly aggressive” enforcement environment.
Rosen posed questions to the panel members to explore the extent to which the government is criminalizing good-faith business decisions.
So, why would the longer phrase “criminalizing good-faith business decisions” set me off so? When I read that phrase, my mind flashed back to April, 2009 and the release of the torture memos. Here is Eric Holder, as quoted by ABC News:
“Those intelligence community officials who acted reasonably and in good faith and in reliance on Department of Justice opinions are not going to be prosecuted,” he told members of a House Appropriations Subcommittee, reaffirming the White House sentiment. “It would not be fair, in my view, to bring such prosecutions.”
But Holder left open the door to some legal action, saying that though he “will not permit the criminalization of policy differences,” he is responsible as attorney general to enforce the law.
Uh-oh. Now it’s even worse. See the additional parallel? Holder decried the “criminalization of policy differences” at the same time he said he wouldn’t prosecute those who acted in “good faith” on the torture memos. The “good faith” in the business article above was smack in the middle of “criminalizing” “business decisions”. Continue reading
At around 9:30 last night, I tweeted something I tweet everytime I watch an episode of the GOP Presidential Candidate Survivor show:
Once again, we’ve gotten to that point of the GOP Debate I hate where Ron Paul starts to sound sane.
Then, about 10 minutes later, Paul said this:
Are you all willing to condemn Ronald Reagan, for exchanging weapons for hostages out of Iran? We all know that was done.
And then Santorum, proving he’s the stupidest of a really dumb presidential field, tried to answer.
Santorum: Iran was a sovereign country, not a terrorist organization, number one.
Paul: Oh they’re our good friends now.
Santorum: They’re not our good friends but they’re a sovereign country. Just like the Palestinian Authority is not the good friends of Israel.
So in one fell swoop, Santorum effectively sanctioned anything Iran did–such as plotting to kill a diplomat in our country–because they’re a sovereign country, misstated that the PA, rather than Hamas, negotiated the prisoner exchange, and suggested that the PA is a sovereign country.
And then Paul went on to note that the detainees at Gitmo are “all suspects, you haven’t convicted them of anything,” to boos from the crowd.
I’ll admit it. Ron Paul was, racism and corporatism notwithstanding, utterly sane in these few minutes. In fact, it’s been a long time since I’ve seen a politician lay bare the stupidity of our political class like this.
(FWIW, Newt went on to sheepishly confirm that it was true, to which Paul responded with the most impish grin.)
We know, because Michael Hayden confirmed it the other day, that the torture program started as a covert operation (at 1:45).
By law, covert operations must be supported by a Presidential Finding (or Memorandum of Notification, which is reportedly what was used here) and require prior notification to Congress.
- The Requirement to Notify Congress
Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.
- Contents of Notification
In all cases, notification to Congress as provided herein shall include a copy of the Finding or associated MON, if any, as signed by the President, and the statement described in section II.A.3 hereof.
- Prior Notification
Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the "Intelligence Committees"), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.
- Extraordinary Circumstances
If the President determines that it is necessary, in order to meet rare, extraordinary circumstances, to delay notification until after the initiation of a special activity, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall delay notification consistent with section 501(b) at the direction of the President. Continue reading
Mukasey’s defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.
Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.
But few people have examined Mukasey’s rationale for defending Yoo.
Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and–I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.
To make this argument, Mukasey relies on Jack Goldsmith’s discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one–FISA–was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress … crafting many of the laws that so infuriatingly tied the President’s hands in the post-9/11 world").