Jack Goldsmith

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The Standards for CIA Crimes

In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.

Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).

I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.

All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.

On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).

Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.

But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.

Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.

When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)

The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.

So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.

Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.

But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).

Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.

Better Put Tom Cotton and His 46 Co-Conspirators on the No-Fly List

Screen Shot 2015-03-09 at 2.46.18 PMAs Josh Rogin first reported, Tom Cotton and 46 other Senators have written a letter to the “leaders of the Islamic Republic of Iran.” They want to warn them that without Senate ratification, the agreement they’re working to sign with President Obama will just be an executive agreement that a future President could just revoke with the stroke of a pen.

Now, much as I’d like the Executive to be reined in in other areas, foreign affairs is the area where they’re supposed to act like an Executive. That was the whole point of moving from a confederation to a federation. So this intervention is improper in that sense, on top of serving the purported interests of Israeli right-wingers more than serving American interests.

The entire production ought to focus more attention on something I’ve been trying to get people to look at: the fundraiser held directly after Congress willingly acted like Bibi Netanyahu’s trained seal, also reported by Josh Rogin. Did Sheldon Adelson pay off all of  Bibi’s trained seals? On what scale?

Plus, Jack Goldsmith catches the Senators in an error about what the Constitution actually says (Tom Cotton as a JD from Harvard Law School, where Goldsmith teaches).

The letter states that “the Senate must ratify [a treaty] by a two-thirds vote.”  But as the Senate’s own web page makes clear: “The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification” (my emphasis).  Or, as this outstanding  2001 CRS Report on the Senate’s role in treaty-making states (at 117):  “It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.”  Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane.  Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.  As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

This is a technical point that does not detract from the letter’s message that any administration deal with Iran might not last beyond this presidency.  (I analyzed this point here last year.)  But in a letter purporting to teach a constitutional lesson, the error is embarrassing.

Me, I’ve got another concern for these poor Senators.

Iran’s leaders are, according to the Senators’ own claims, evil terrorist-supporting murderers. Indeed, our own government considers them as such, not only imposing sanctions but — according to Dianne Feinstein and Keith Alexander — also treating Iran as one of the few “terrorist groups” association with which the NSA can use to contact chain on its dragnets of American communications.

In short, the government believes that anyone conducting communications with such people are terrorist suspects themselves, and should be dumped into a big database to have all their collected metadata analyzed for further signs of terrorism.

Tom Cotton and his 46 collaborators are now just 1-degree of separation from what they consider some badass terrorists. We’ve seen people be put on the No-Fly list for far less.

I don’t think that’s right, mind you. There’s a problem with metadata analysis.

That’s a problem the Senators might do better looking to correct, rather than working to keep the Middle East unstable for Israel’s interests.

Update: As the screen capture above makes clear, Tom Cotton has now placed himself at one degree of separation from the terrorist sponsor Ayatollah Khamenei via dead tree and Twitter.

Yes, Eric Holder Does Do the Intelligence Community’s Bidding in Leak Prosecutions

 

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The second-to-last witness in the government’s case against Jeffrey Sterling, FBI Special Agent Ashley Hunt, introduced a number of things she had collected over the course of her 7.5 year investigation into James Risen’s chapter on Operation Merlin. That included a few things — most notably two lines from Risen’s credit card records from 2004 — that in no conceivable way incriminated Sterling.

On November 17, 2004, Risen charged €158.00 at the Hotel Inter-Continental in Vienna, Austria on his credit card (the provider of which DOJ included in its exhibit). On November 21, 2004, Risen put another €215.30 in Inter-Continental charges on his credit card.

What Agent Hunt had proven by highlighting these two details was that James Risen traveled to Vienna as background for a book chapter set in Vienna, and even went to the hotel where Merlin had stayed. None of that did a thing to prove that Sterling leaked Merlin’s travel information — or anything else — to Risen. But the government decided to gratuitously enter into evidence that they had seized years of Risen’s credit card records, and in doing so obtained details of where Risen had traveled (and also, on what days his daughter sent something via FedEx). It wasn’t enough that we knew that already from court filings. DOJ still saw the need to introduce gratuitous notice that they had all of Risen’s credit card statements into the court record.

“We own you,” seemed to be the message to Risen from this flaunting of his credit card records.

But don’t worry, Eric Holder generously decided not to call Risen to testify against Sterling after having hounded him — in this and the warrantless wiretap investigation — for 6 years already, both Jack Goldsmith and Ben Wittes insist.

Both men seem to vastly underestimate how DOJ’s actions in the last decade impact journalism. And both men seem to misunderstand what just happened in the Jeffrey Sterling trial, where DOJ succeeded in exposing a man to 40 years in prison, based largely on metadata, without even having the key pieces of evidence at issue in the case (almost certainly because of CIA’s doing, not Sterling’s).

Uncharacteristically, Wittes’ post is less annoying that Goldsmith’s. Sure, as he did with Laura Poitras, Wittes appointed himself the arbiter of what the NYT should and shouldn’t tolerate from journalists it pays. I will remember that Wittes believes an employee’s intemperate rants on Twitter should get close scrutiny by their employers the next time Wittes makes factually flawed defenses of his torturer buddies on Twitter or complains when Chris Soghoian tweets about Keith Alexander’s operational security sloppiness when he rides on Amtrak.

But Goldsmith writes two paragraphs about leak prosecutions that — while they may bolster Goldsmith’s questionable claims about how journalism functions to rein in the Executive — entirely miss the point. I’ll take them in detail here:

Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary.

The notion that the trial Holder’s DOJ just staged in Eastern District of Virginia was not about “doing the bidding of the intelligence community” makes me tear up I’m laughing so hard. A very key part of the trial was putting Bob S on the stand so he could make claims about Operation Merlin — which turned out not to be backed up by the documentary evidence or his asset’s memory — so as to be able to claim, “We have demonstrated we did this very carefully.” This was a clusterfuck of an operation, but nevertheless DOJ gave Bob S a day and a half to try to claim it wasn’t. DOJ offered CIA this favor while playing their classification games (this was, after all, EDVA, an improper venue for almost all of the charges, but a very good place to get favorable treatment for security theater) so as to avoid explaining — except when it became handy for Condi to blurt something out — why this operation went from being a clandestine information collection operation to something far more sensitive, which is probably the real reason someone other than Sterling leaked the information as the government was trumping up war against Iraq, the next country that got the Merlin treatment.

It’s EDVA, Goldsmith!!! The same place Holder went to have John Durham pretend to investigate CIA’s obstruction of justice until the statute of limitations expired! The same place Holder went to keep investigating and investigating until DOJ could deliver a head, any head, to punish Gitmo defense attorneys’ crazy notion that they might have good reason to want to learn how and who anally raped their clients in the name of rehydration such that they’re still bleeding, 12 years later.

EDVA has become, under Holder, where DOJ goes to obtain arbitrary judgments that ensure CIA and other agencies will never be held accountable for crimes, but some low-level leaker will be delivered up anytime CIA’s crimes or incompetence get exposed.

Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.

Here Goldsmith makes the same nonsensical claim that Steven Aftergood made for The Intercept’s profile of Stephen Kim. The investigation into James Risen’s stories has been going on for twelve years. The investigation into Risen’s reporting on Operation Merlin started over four years before Chelsea Manning even joined the Army, much less started the torrent of leaks Goldsmith claims justifies all these investigations.

And the ratio of leak prosecutions to leaks remains tiny.

This line comes right out of Holder’s defense of his leak prosecutions the other day. And it’s true. But it’s a big part of the problem. Thus far, after all, James Cartwright has not been indicted for allegedly leaking a far more sensitive counter-proliferation program targeting Iran than Sterling purportedly leaked. No one is even considering prosecuting Leon Panetta for leaking details of the Osama bin Laden raid (or classified details in his memoir). I doubt David Petraeus will be indicted either for letting his mistress have access to all his most intimate secrets.

The people who get prosecuted — Jeffrey Sterling, John Kiriakou, Donald Sachtleben, Stephen Kim — they’re not the problem behind this system of leaking and in several cases it’s very clear they’re not even the key leakers: instead, they’re the human detritus the government can dispose of so others will see just how arbitrary the secrecy system really is, by design.

But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.

I suspect Risen would say this is not the case. I suspect a number of the other journalists targeted by DOJ would say the same. That is, the point is not about stopping leaks (though I think the Insider Threat system will make it easier to pick and choose which human detritus will be the next sacrificed to feed this arbitrary system of control), but often as not burning certain journalists or others who don’t play the game.

We own you, investigative journalist, and know what you did in Vienna back in 2004.

Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.

I think here Goldsmith misses the novel theory the government used to convict Sterling, the one Holder has deemed the model to go after others.

Under this theory, journalists will be treated as empty vehicles, and the “cause to leak” language in the Espionage Act will be blown up, so that even completely unclassified conversations may be deemed the cause of an investigative journalist with sources throughout the CIA publishing a story. And the jurisdiction, too, will be blown up, so that so long as a single hairdresser buys a book in EDVA — or maybe MD, who cares, really?!?! — then DOJ can stage their witch hunt in EDVA with all its trappings of security theater.

There are some interesting theories behind the successful prosecution of Sterling for a bunch of metadata. And Goldsmith might at least familiarize himself with where Holder’s DOJ is taking the Espionage Act, because it deserves more scrutiny before the Sterling prosecution is deemed to have done no damage to the journalistic process.

Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder.

Again, the underlying problem is the asymmetry involved. The government keeps hiding more and more stuff — the top officials behind its trust-building CVE program, even! — behind a veil of secrecy. That amid increasingly absurd claims of secrecy — and increasingly persistent evidence the secrecy often serves to hide law-breaking or incompetence, as it did with the Merlin caper — more secrets get out should be no great celebration. It’s the structure of it all — the paranoia, the arbitrariness, and the incompetence behind it all — that really sours any claim to democratic governance. Goldsmith may take solace we’re getting more secrets out, but until we reverse the slide into arbitrariness it heralds, I’m not so sanguine.

During the hearing just after the defense closed in the Sterling trial, there was a fascinating discussion, largely about how DOJ planned to blow up the “cause” language in the Espionage Act to further criminalize just talking to journalists, to criminalize publishing a book and deigning to distribute it in EDVA. The conversation kept coming back to how DOJ had gone from treating Risen as a criminal weeks earlier to treating him as an innocent naif who channeled Sterling’s spying to the unwitting citizens of EDVA. Judge Leonie Brinkema at one point said, “If Risen were not protected by the newsman’s privilege, I suspect he would have been named as a co-conspirator.” “There is no newsman’s privilege,” defense attorney Edward MacMahon pointed out, laughing at the absurdity of claiming there was after the 3 year battle over just that topic. But the exchange hung there, pregnantly, because ultimately branding Risen a criminal — or, barring that, branding having even unclassified conversations with Risen as criminal — was a big part of the point of this trial.

What this prosecution did — what, I believe, it was designed to do — was two-fold. First, burn Risen, burn Risen over 12 long years of investigation during which the counterpart investigation even reportedly seized his phone records. But also, to herald a new interpretation of the Espionage Act that will criminalize even having phone calls with a journalist who has reported on completely unclassified stories involving you in the past.

Update: Year on Risen’s credit card records corrected per Rich.

Some Torture Facts

At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.

1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.

2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).

3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.

4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.

5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.

6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.

7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.

8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.

9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007

10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.

11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).

12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.

Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.

The Warmongers Hang Out the Insular Bumblers

At the risk of being misunderstood as defending Susan Rice, let me explore a couple of things about this article, complaining about her “bumbling” as National Security Advisor.

3,000 words into a 3,500 word article, this sentence — which I believe is the real point of the story — appears.

And the larger question is whether Hagel’s mostly inward focus on budget and morale issues at the Pentagon is the right focus now—instead of helping to project American power abroad amidst spiraling global crises.

That is, the article expresses the viewpoint of a bunch of mostly anonymous people who believe that “projecting American power” (in the form of military presence) is the solution to the multiple crises in the world today, including the Ebola epidemic. Underlying it all is a complaint not only that Obama isn’t projecting enough tanks and planes, but he’s daring to cut DOD’s budget.

Along the way, the article complains that the White House:

  • Did not consult with “the Pentagon” before sending a plan to combat ISIL to Congress (though the White House may have consulted with Chuck Hagel and Martin Dempsey)
  • Did not alert either Chuck Hagel’s office or “the Pentagon” before asking Congress to withdraw the 2002 AUMF authorizing force against Saddam Hussein but not Islamic terrorists in Iraq
  • Sought Congress’ authorization to use military force in Syria, which led instead to partial CW disarmament by Bashar al-Assad
  • Picked insider Ron Klain to deal with the Ebola crisis that is already being dealt with by CDC

It also complains about Chuck Hagel’s low visibility and the fact he let Dempsey undercut the President’s claims about boots on the ground in Iraq.

Now, I agree with the complaint — if true — that the initial plan sent for ISIL wasn’t sufficiently vetted. It sounds like something the Saudis wrote, which might suggest the Saudis wrote it, which given the Saudi role in fostering ISIL, would be deeply alarming but not at all surprising.

And I agree that the White House appears to run from crisis to crisis like 6 year olds on a soccer field (though I’m not 100% convinced that reflects reality, rather than a response to a political need to appear to be in crisis mode). I even agree there is abundant reason to be skeptical of the Administration’s strategy, though Michael Hirsh doesn’t even consider that they might have one, which seems to overlook hints of an effort to rework the regional structure of the Middle East.

But ultimately, these criticisms serve another purpose: to complain that Obama is not rushing into full-scale war in Iraq and Syria.

To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.

[snip]

With ISIL still on the move in Iraq and Syria, and the air strikes that Obama announced on Sept. 10 proving to be of dubious effectiveness, many military experts say this is the moment to beef up the U.S. presence with close combat advisers and spotters on the ground who can guide in heavier and more precise airstrikes, as well to provide more U.S. trainers. But the president’s “no boots on the ground” pledge has paralyzed discussion, despite Dempsey’s lonely effort to open the door slightly to the possibility of bringing in such advisers.

There is never the hint of consideration that the solution may perhaps be less military involvement, not more, the last decade of evidence notwithstanding. Nor is there consideration of the possibility that the reason Obama seems so lackadaisical is because he has different goals in Syria than they do, not least to get beyond the election and force the Middle East to start putting some skin in their own security demands.

There’s never the hint of consideration that projection of American power is part of the problem, not the solution.

That’s my general complaint about the article. But I’m also very fascinated by this passage.

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

“The authorities were still needed”?? Two and a half years after we withdrew troops from Iraq?

Before I explain my interest in the passage, consider this response from a guy who was Special Counsel to DOD while the Iraq War AUMF was being drawn up, and later interpreted the scope of that AUMF while Assistant Attorney General at OLC, Jack Goldsmith.

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

In context, Goldsmith makes an enormous logical leap. That we need some kind of authorization if we’re going to go back to war in Iraq in no way means we need an AUMF crafted — at least as far as those of us who weren’t privy to the process are concerned — to fight an entirely different war. Nothing about Obama’s subsequent decision to go to war suggests we need that AUMF — and almost every observer who wasn’t involved in crafting and interpreting that AUMF disagrees about its applicability in this case.

But Hirsh’s “senior defense official” source seems to be saying something even more. In July 2014 DOD believed “the authorities” provided by Congress in 2002 to fight Saddam “were still needed.” Not, “would be needed” if we put all the boots on the ground this article seems to endorse. But “were still needed.”

That leads me to suspect the entirely unsurprising hypothesis that DOD never stopped relying on (or had already resumed relying on) the AUMF for … something.

It’s not out of the question, for example, that whatever JSOC forces that were part of CIA’s boots on the ground that started at least by June 2013 were “relying” on the totally inapt 2002 AUMF. It’s possible that, even when JSOC gets “sheep-dipped” into CIA ops, it still likes to have an AUMF lying around so it can claim that its un-uniformed soldiers operating off of a battlefield are entitled to the same combatant’s privilege they would be if they wore a uniform on a recognized battlefield.

Or it could be DOD never really pulled all its troops from Iraq. Because someone has to manage the contractors after all. There were reports, for example, as ISIL advanced on Kirkuk, that we’ve always had troops there.

If either is the case, I can see how DOD might react badly to these lines from Rice’s letter asking to have the AUMF withdrawn.

As the President unequivocally stated in late June, “American forces will not be returning to combat in Iraq,…”

[snip]

With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq.

After all, if ground forces already were in Iraq, and if DOD works under the assumption that its covert special forces obtain combatant status from these AUMFs lying around, it would explain why they were so cranky that Rice moved to withdraw it.

But there must be some explanation, because unless it was in use in July, months before Obama overtly started engaging ISIL in Iraq, there’s no basis for DOD to complain.

It sure seems like the Iraq AUMF has been secretly redefined (maybe even was when Goldsmith was still at DOD), just like the 2001 AUMF.

 

Hospital Hero Jack Goldsmith, the Destroyer of the Internet Dragnet, Authorized the Internet Dragnet

As I noted earlier, I think the re-release of Jack Goldsmith’s May 6, 2004 OLC memo authorizing Stellar Wind is meant to warn Congress that the Executive does not believe it needs any Congressional authorization to spy on every American — just in time for the USA Freedom Act debate in the Senate. This is exactly parallel to similar provocations during the Protect America Act debate. In the past, such provocations led Congress to capitulate to Executive branch demands to tailor the program to their wishes.

That earlier post, however, implied that this warning pertains primarily to the phone dragnet.

It doesn’t. The warning also applies to the Internet dragnet (and I suspect that stories about the heroic hospital heroes shutting down the Internet dragnet have been dramatically overblown).

One of the very few things — aside from the name STELLAR WIND, over and over, as well as references to content collection that could have been released after President Bush admitted to that part of the program in 2005, and the title Secretary of Defense — that has been newly revealed is this bit of the Table of Contents (here’s the previous release for comparison).

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It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment. That already makes it clear that part IV is about metadata. The last sentence of the first full paragraph on page 19 does, too. Page 7 makes it clear that Fourth Amendment analysis applies to “both telephony and e-mail.” Much later in the memo, it becomes clear this section — pages 96 to 100 — deals with Internet metadata.

In fact, the only substantive newly unredacted parts of the memo appear on 101 (PDF 69) and then from 106 to 108.

All of this new information makes it clear that Goldsmith asserted that Smith v. Maryland applied for metadata — and applied to both phone and Internet metadata. Remarkably, in that analysis, the government keeps at least one paragraph addressing phone metadata hidden, but reveals the analysis at 106-7 (PDF 74-75) that applies to Internet. (Goldsmith’s claim that Internet users can get providers to turn off spam, at the bottom of 107, is particularly nice.)

In perhaps the most interesting newly released passage (out of the roughly 5 pages that got newly released!), Goldsmith absolves himself of examining what procedures the government was using in its “metadata” collection.

As for meta data collection, as explained below, we conclude that under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), the interception of the routing information for both telephone calls and e-mails does not implicate any Fourth Amendment interests.85

85 Although this memorandum evaluates the STELLAR WIND program under the Fourth Amendment, we do not here analyze the specific procedures followed by the NSA in implementing the program.  (101/PDF 69)

I find this utterly damning, given that we know that, for the following 5 years, the government would lie to FISC about whether their “metadata” contained content. Even the OLC opinion built in the Executive’s ability to collect content in the guise of metadata!

In any case, what is clear — again, just in time to impact the debate over USA Freedom, for which prospective call record collection might or might not be limited to telephone content — is that rather than legally shutting down the Internet dragnet in 2004, Jack Goldsmith authorized it.

And that authorization remains in place, telling the Executive it can collect Internet (and phone) “metadata” whether or not FISC or Congress rubberstamps it doing so. Not only that, but telling the Executive this analysis holds regardless of how inadequate their procedures are in implementing this program to ensure that no content gets swept up in the guise of metadata (which of course is precisely what occurred).

So the Administration, in releasing this “newly unredacted” memo did one thing. Tell Congress it will continue to collect phone and Internet “metadata” on its own terms, regardless of what Congress does.

Only one thing could alter this analysis of course: if the Courts decide that Smith v. Maryland doesn’t actually permit the government to collect all metadata, plus some content-as-metadata, in the country, if they say the Executive can’t actually collect “everything there is to know about everybody and have it all in one big government cloud,” as 2nd Circuit Judge Gerard Lynch described the implications of what we now know to be Goldsmith’s logic on Tuesday. But the courts are going to stop analyzing this question as soon as Congress passes USA Freedom Act. Moreover, the last check on the program — the unwillingness of providers to break the law — will be removed by the broad immunity provision included in the bill.

Not only didn’t Jack Goldsmith heroically legally shut down the Internet dragnet in 2004 (clearly President Bush did make several modifications; we just still don’t know what those are). But he provided a tool that is likely proving remarkably valuable as the Executive gets Congress and privacy NGOs to finish signing off on their broad authority.

The hospital heroes may have temporarily halted the conduct of the Internet dragnet — even while telling Colleen Kollar-Kotelly she had to rubber stamp ignoring the letter of the law because Congress couldn’t know about the dragnet — but they didn’t shut it down. Here it is, legally still operating, just in time to use as a cudgel with Congress.

Update: One other thing other reporting on this is missing — and not for the first time — is that whatever change they made to the Internet dragnet, it was by no means the only change after the hospital confrontation. They also took Iraqi targeting out (in some way). And there was a later April 2 modification that appears to have nothing to do with NSA at all (I have my theories about this, but they’re still theories). So it is too simple to say the hospital confrontation was exclusively about the Internet dragnet — the public record already makes clear that’s not the case.

Executive Still Hiding Its Phone Dragnet Self-Authorization, While Making Sure We Know It Has It

Screen Shot 2014-09-06 at 9.48.41 AM

Back in February, Ron Wyden got then acting OLC head Caroline Krass to admit that Jack Goldsmith’s May 6, 2004 Stellar Wind authorization remained active. Although they could rely on it at any time, Krass suggested they weren’t, because FISA currently authorizes the very same phone dragnet that OLC authorized a decade ago.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

[snip]

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Last night, the government finally released a new version of that memo, reflecting all the things that have been declassified thanks to Edward Snowden’s leaks.

And it shows that a 15-page section of the memo authorize(s) the phone dragnet.

Only, that section is entirely redacted.

Even after the phone dragnet has been declassified for 15 months, the Executive refuses to show its claim that it can engage in that dragnet with or without Congressional authorization.

Understand what this amounts to: The Executive just waved its dick around in advance of Congressional action that may or may not reauthorize this program. It said, to Congress and to us, that it will continue operating its phone dragnet with or without Congressional authorization.

For what it’s worth, I think that’s a bluff. I believe Verizon would refuse to cooperate without explicit authorization from Congress and legal mandates it can show. But the Executive is, at least, trying to send a message that it doesn’t believe it needs anything so piddly as Congressional approval to spy on every single American.

The Hospital Confrontation Heroes of Rule of Law Gutted Separation of Powers

Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?

It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.

Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.

[snip]

The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.

They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.

Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.

The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.

DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.

And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”

You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?

Nope, neither do I.

Ashcroft, Comey, Goldsmith, and Baker: “All” Is the “Best” Reading of “Relevant”

Four MusketeersTowards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

This is why you should not have secret courts.

I get making an aggressive push to authorize dragnet surveillance.

I get mining old and foreign dictionaries to come up with a definition that suits your needs.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.

Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”

The Other Authority for the Phone Dragnet

Back in February, I noted Ron Wyden’s question for then acting OLC head Caroline Krass (she’s now CIA’s General Counsel) about Jack Goldsmith’s 2004 OLC opinion authorizing the dragnet.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

This is an exchange Center for National Security Studies Kate Martin brings back into the discussion of whether USA Freedumber actually ends bulk collection.

[W]e don’t know whether the Justice Department has opined that other statutory authorities – not now addressed in the USA Freedom Act – could authorize the NSA’s bulk collection.  Without this knowledge, we can’t be certain whether the proposed amendments to section 501 (215) will in fact be sufficient to prohibit the NSA from engaging in bulk collection of metadata using some other hitherto unidentified authority.

This is not a fanciful concern.  There is in fact a still partly secret OLC opinion by the Justice Department that may address precisely this question.

CNSS is using the debate over USA Freedumber to demand the Administration declassify the rest of that opinion.

When the government declassified the statements submitted in the Jewel v. NSA case last December, it basically declassified everything that should be in that memo. So what’s the holdup on releasing the memo itself?

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Emptywheel Twitterverse
emptywheel @dangillmor So they say.
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emptywheel @nickmanes1 But you got it? Was your phone nearby? Mine was downstairs, no idea what noise it made. But D's phone noise was HORRIBLE.
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emptywheel @dangillmor Right. That'll definitely happen under Leader Schumer.
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emptywheel RT @ValeriePlame: Very good article. But it's the comments that are intriguing... Guantánamo’s Charade of Justice http://t.co/4YHLU1pwoH
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emptywheel @PhilPerspective Did not know but he's launching book tour for book abt Poppy. Wonder how much CIA dirt will not be in it @Krhawkins5 @bmaz
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emptywheel @OrinKerr We should have public convo. Too bad FBI has repeatedly engaged in bad faith. @trevortimm @astepanovich
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emptywheel @PhilPerspective As @Krhawkins5 suggested, perhaps bc he helped them avoid accountability for torture? @bmaz
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bmaz @randiego2 @tparsi Yes I would, and I would want a nuke bad for deterrence. So, if they are willing to negotiate away, its a great deal.
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bmaz @Popehat Good grief, let us hope not. We haz teh laws for that.
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bmaz If he only had a heart... RT@emptywheel Dick Cheney was too busy to drive 10 miles to see CIA give George W Bush an award.
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bmaz RT @emptywheel: Dick Cheney was too busy to drive 10 miles to see CIA give George W Bush an award. http://t.co/pfT4Y2cIJ5
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bmaz RT @astepanovich: Stop it. Just. Fucking. Stop it. https://t.co/UZsAsTuDYJ
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