John Cornyn

Connecting the Dots on the Hillary Emails

I maintain my belief that it is unlikely Hillary will be implicated in the investigation into her email practices, though it is quite possible that top aides like Jake Sullivan or Huma Abedin would be.

That said, I want to put three pieces of data together that have made me less sure of that — or the potential scope of this investigation.

The first is this AP story showing that top Clinton aides sought, but did not obtain, a blackberry like device that Hillary would have been able to use in a SCIF. [See update]

Clinton’s desire for a secure “BlackBerry-like” device, like that provided to President Barack Obama, is recounted in a series of February 2009 exchanges between high-level officials at the State Department and NSA. Clinton was sworn in as secretary the prior month, and had become “hooked” on reading and answering emails on a BlackBerry she used during the 2008 presidential race.

“We began examining options for (Secretary Clinton) with respect to secure ‘BlackBerry-like’ communications,” wrote Donald R. Reid, the department’s assistant director for security infrastructure. “The current state of the art is not too user friendly, has no infrastructure at State, and is very expensive.”

Reid wrote that each time they asked the NSA what solution they had worked up to provide a mobile device to Obama, “we were politely told to shut up and color.”

Resolving the issue was given such priority as to result in a face-to-face meeting between Clinton chief of staff Cheryl Mills, seven senior State Department staffers with five NSA security experts. According to a summary of the meeting, the request was driven by Clinton’s reliance on her BlackBerry for email and keeping track of her calendar. Clinton chose not to use a laptop or desktop computer that could have provided her access to email in her office, according to the summary.

Standard smartphones are not allowed into areas designated as approved for the handling of classified information, such as the block of offices used by senior State Department officials, known by the nickname “Mahogany Row” for the quality of their paneling. Mills said that was inconvenient, because they had to leave their offices and retrieve their phones to check messages.

The story shows that some top aides (and presumably Hillary herself) were aware of the security concerns tied to using a blackberry in a SCIF (though Judicial Watch president Tom Fitton’s statement that this shows an awareness of security concerns with the blackberry may overstate things).

Perhaps the most telling detail comes from this no-comment from former Department of Justice Director of Public Affairs, Brian Fallon:

Clinton campaign spokesman Brian Fallon declined to comment Wednesday.

Fallon has generally been much chattier about the drip drip drip tied to this story.

In any case, this story puts revelations in a Fox story from last week, describing Clinton sysadmin Bryan Pagliano’s testimony as “devastating” because he helped tie the use of particular devices to particular times.

The source said Pagliano told the FBI who had access to the former secretary of state’s system – as well as when – and what devices were used, amounting to a roadmap for investigators.

“Bryan Pagliano is a devastating witness and, as the webmaster, knows exactly who had access to [Clinton’s] computer and devices at specific times. His importance to this case cannot be over-emphasized,” the intelligence source said.

The source, who is not authorized to speak on the record due to the sensitivity of the ongoing investigation, said Pagliano has provided information allowing investigators to knit together the emails with other evidence, including images of Clinton on the road as secretary of state.

The cross-referencing of evidence could help investigators pinpoint potential gaps in the email record. “Don’t forget all those photos with her using various devices and it is easy to track the whereabouts of her phone,” the source said. “It is still boils down to a paper case. Did you email at this time from your home or elsewhere using this device? And here is a picture of you and your aides holding the devices.”

Knowing that the FBI has evidence that Clinton’s aides sought a way to obtain a secure blackberry, the detail that they’re tying emails sent to what device they were sent from, suggests they may be trying to tie individual emails, and their content, to the device they were sent from. And remember, there’s an entire Tumblr of pictures of Hillary using her (non-secure) blackberry.

Now consider what I laid out in this post, when John Cornyn made it clear Attorney General Loretta Lynch is the final decision maker on whether to act on an FBI recommendation to convene a grand jury and move toward an indictment.

Cornyn: If the FBI were to make a referral to the Department of Justice to pursue criminal charges against Mr. Pagliano or anyone else who may have been involved in this affair, does the ultimate decision whether to proceed to court, to ask for the convening of a grand jury, and to seek an indictment, does that rest with you, or someone who works for you at the Department of Justice?

Lynch: So Senator with respect to Mr. Pagliani [sic] or anyone who has been identified as a potential witness in any case, I’m not able to comment on the specifics of that matter and so I’m not able to provide you–

Cornyn: I’m not asking you to comment on the specifics of the matter, I’m asking about what the standard operating procedure is, and it seems pretty straightforward. The FBI does a criminal investigation, but then refers the charges to the Department of Justice, including US Attorneys, perhaps in more celebrated cases goes higher up the food chain. But my simple question is doesn’t the buck stop with you, in terms of whether to proceed, to seek an indictment, to convene a grand jury, and to prosecute a case referred to you by the FBI?

This felt like Cornyn had been sent by someone very high up in FBI (which is probably why Lynch responded so forcefully to make clear she’s the boss of everyone at the Bureau) to pressure the Attorney General to let them convene a grand jury. Now, it appears the basis for any grand jury is not just sending classified emails, but where and on what device those emails got sent.

Again, I still think Hillary is most likely safe. But I’m beginning to see how FBI might want to make a criminal case of sending classified information using insecure blackberries knowing they were insecure.

Update: Here are the emails. Note this seems to target Cheryl Mills more than Sullivan or Abedin (note her departure briefing is in there). It shows Mills directly receiving a bunch of briefing from NSA about the insecurities of BBs.

Also note: contrary to the emphasis of the AP piece, the issue appears not to be that NSA wasn’t doing what they could do, but instead that Hillary’s key staffers can be shown to have gotten technical briefing on the problems with BBs.

In Exchange about Clinton Email Investigation, Lynch Forcefully Reminds She Is FBI’s Boss

There’s one last exchange in Wednesday’s Senate Judiciary Committee hearing with Attorney General Loretta Lynch that deserves closer focus. It came during John Cornyn’s round of questioning.

He structured his questions quite interestingly. He started by using the example of the Apple All Writs Act order to emphasize that FBI can’t do anything without DOJ’s approval and involvement. “I just want to make sure people understand the respective roles of different agencies within the law enforcement community — the FBI and the DOJ.”

He then turned to an unrelated subject — mental health, particularly as it relates to gun crime — ending that topic with a hope he and Lynch could work together.

Then he came back to the respective roles of the FBI and DOJ. “So let me get back to the role of the FBI and the Department of Justice.”

He did so in the context of Hillary’s email scandal. He started by reminding that Hillary had deleted 30,000 emails rather than turning them over to State for FOIA review. Cornyn then raised reports that the government had offered Bryan Pagliano immunity (Chuck Grassley argued elsewhere in the hearing that that should make it easy for Congress to demand his testimony, as the WSJ has also argued). “It’s true, isn’t it, that immunity can’t be granted by the FBI alone, it requires the Department of Justice to approve that immunity.”

Lynch filibustered, talking about different types of immunities, ultimately ceding that lawyers must be involved. She refused to answer a question directly about whether they had approved that grant of immunity. Which is when Cornyn moved onto trying to get the Attorney General to admit that she would have the final decision on whether to charge anyone in the email scandal.

Cornyn: Let me give you a hypothetical. If the FBI were to make a referral to the Department of Justice to pursue a case by way of an indictment and to convene a grand jury for that purpose, the Department of Justice is not required to do so by law, are they?

Lynch: It would not be an operation of law, it would be an operation of our procedures, which is we work closely with our law enforcement partners–

Cornyn: Prosecutorial discretion–

Lynch: –it would also be consulting with the Agents on all relevant factors of the investigation, and coming to a conclusion.

Cornyn: But you would have to make to the decision, or someone else working under you in the Department of Justice?

Lynch: It’s done in conjunction with the Agents. It’s not something that we would want to cut them out of the process. That has not been an effective way of prosecuting in my experience.

Cornyn: Yeah, I’m not suggesting that you would cut them out. I’m just saying, as you said earlier, you and the FBI would do that together, correct? Just like the Apple case?

Lynch: We handle matters together of all types.

Cornyn: If the FBI were to make a referral to the Department of Justice to pursue criminal charges against Mr. Pagliano or anyone else who may have been involved in this affair, does the ultimate decision whether to proceed to court, to ask for the convening of a grand jury, and to seek an indictment, does that rest with you, or someone who works for you at the Department of Justice?

Lynch: So Senator with respect to Mr. Pagliani [sic] or anyone who has been identified as a potential witness in any case, I’m not able to comment on the specifics of that matter and so I’m not able to provide you–

Cornyn: I’m not asking you to comment on the specifics of the matter, I’m asking about what the standard operating procedure is, and it seems pretty straightforward. The FBI does a criminal investigation, but then refers the charges to the Department of Justice, including US Attorneys, perhaps in more celebrated cases goes higher up the food chain. But my simple question is doesn’t the buck stop with you, in terms of whether to proceed, to seek an indictment, to convene a grand jury, and to prosecute a case referred to you by the FBI?

Lynch: There’s many levels of review, at many stages of the case, and so I would not necessarily be involved in every decision as to every prosecutorial step to make.

Cornyn: It would be you or somebody who works for you, correct?

Lynch: Everyone in the Department of Justice works for me, including the FBI, sir.

Cornyn: I’m confident of that.

Grassley: Senator Schumer.

Schumer: Well done, Attorney General, well done.

I’m not entirely sure what to make of this: whether Cornyn was setting this up for the future, or whether he was trying to lay out Lynch’s responsibility for a decision already made. But given the reports that FBI Agents think someone should be charged (whether because of the evidence or because Hillary is Hillary), it sure felt like Cornyn was trying to pressure Lynch for her role in decisions already discussed. Indeed, I wonder whether Cornyn was responding to direct entreaties from someone at the FBI, possibly quite high up at the FBI, about Lynch’s role in this case.

Whatever he was trying to do, it may lead to some folks in the FBI getting a stern talking to from their boss, Loretta Lynch.

Hillary’s Flint Gambit

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As I’ve noted repeatedly, when independent tests first publicized that decisions made by Governor Snyder’s hand-picked Emergency Manager were poisoning Flint’s children last October, he made a show of response, but it wasn’t until the Task Force he appointed laid into his Department of Environmental Quality and Detroit’s US Attorney revealed it was investigating the problem that Snyder ratcheted up his effort to appear to be responding.

But his actions since then have largely been an attempt to stall for time, presumably a hope that anti-corrosives in Flint’s pipes will bring lead levels down so that we can all move on and forget about it. True, he did get the state legislature to cough up $28 million, which will go to ramping up state agency involvement. He has asked for $30 million to alleviate some, but not all, of Flint residents’ water bills so they’re not paying for water they can’t use, but it’s not clear the legislature will fund it (and it’s just partial relief in any case).

But at the same time, he has asked for bigger funding chunks from the Federal government: $96 million under disaster funding for things including replacing a fraction of the lead pipes in the city, and the expansion of funding for WIC funding for Flint’s children until they’re 10 (which would have improved nutritional support for kids at risk of lead poisoning). The Feds denied both those requests. Snyder and the Republicans are now blaming Obama for denying these requests. Understand: Obama’s administration could only had approved them by violating the terms of these programs set by Congress. Snyder asked for something that, under the law, Obama could not give, and now Snyder is using that denial to try to pawn off responsibility onto Obama, rather than the appointed managers who created this mess and ignored it for over a year.

That leaves the lead pipes in the ground, still leaching toxic levels of lead four months after anti-corrosives were first added to the water to try to reverse the corrosion. Some houses in Flint still have so much lead in the water that filters cannot be trusted to remove the poison.

Michigan’s Senators, Debbie Stabenow and Gary Peters, tried to get $600 million added to a bipartisan energy bill to start the work of actually replacing those pipes. But even revising that request down to $200 million didn’t work, so Democrats filibustered the bill.

That was Thursday.

Hours later, during the debate, Hillary announced she’d do an appearance in Flint today, which ended a few hours ago.

I will be in Flint at the Mayor’s invitation on Sunday to get an in depth briefing about what is, and is not happening.

This is an emergency. Everyday that goes by that these people, particularly the children, are not tested so we can know what steps must be taken to try to remediate the effects of the poisoning that they have been living with is a day lost in a child’s life. I know from the work that I’ve done over so many years, lead, the toxic nature of lead can affect you brain development, your body development, your behavior.

I absolutely believe that what is being done is not sufficient. We need to be absolutely clear about everything that should be done from today to tomorrow, into the future to try to remedy the terrible burden that the people of Flint are bearing. That includes fixing their pipes, it includes guaranteeing whatever healthcare and educational embellishments they may need going forward, and I think the federal government has way where it can bill the state of Michigan. If Michigan won’t do it, there have to be ways that we can begin to move, and then make them pay for it, and hold them accountable.

Her appearance (which drew no national coverage) had some strong points: She reminded she had worked on lead (paint) issues in New York, she noted that many other cities are suffering from similar problems, she called to get Flint people working to replace the pipes.

She brought up the $200 million Democratic Senators are currently demanding.

Therein lies the rub.

I’m completely agnostic about whether this particular trip will hurt or help (it’s very clear that Hillary’s focus on Flint two debates ago helped draw attention, though of course that came months after the lead poisoning was first revealed in October).

It could be that next week Democrats in the Senate will be able to get Republicans to relent to their demand for Flint funding. But it could also be that Republicans will dig in, given that denying Flint funding becomes a way to deprive the presumptive Democratic nominee a win. That’s true, especially since John Cornyn already accused Democrats of trying to embarrass Republicans on this issue.

Republican Majority Whip John Cornyn of Texas called the Democrats’ sudden rejection of what had been bipartisan support for the energy bill “gamesmanship” and an effort to “embarrass Republicans” by making it seem they did not care about Flint.

He said state officials are trying to figure out how much a full infrastructure repair program in the city might cost — an estimate is expected next week — and to authorize full funding before that was “putting the cart before the horse.”

“The State of Michigan and the City of Flint don’t know what they need to do to fix the problem or how much it will cost,” Cornyn said. “The senators form Michigan come in here and say we don’t need to know … we want cash.”

It seems Republicans are stalling, hoping this will fade from view before some Republican legislature — either Federal or state — ends up funding a needed infrastructure program which will not only fix the water problem, but provide a Keynesian boost to a city Republicans would like to cure with more austerity. As months go on, this year’s Presidential and next year’s gubernatorial election will exert pressure of some sort. It may well be that Hillary can use her focus on Flint to showcase a call for more infrastructure funding that will tip some elections. It may also be that the prospect of Hillary on the ballot in November exerts pressure downticket on Republicans.

But for the moment, this seems like uncertain political gamesmanship that could leave Flint residents drinking from plastic bottles for months to come.

Update: I meant to include this quote from a Flint resident, which encapsulates my concern.

“It’s bad news to me,” said Arthur Woodson, a 46-year-old Army veteran who runs New Beginnings, a Flint-based nonprofit aimed at helping soldiers return to the community. “She’s turning it into a political football. The GOP won’t ever do anything now. They’re going to turn it into a partisan thing.”

“This is a water issue,” he continued. “It’s not a political issue. We got kids who are suffering. We don’t have time for this partisan stuff.”

Update: MI Republican Chair and Mitt Romney niece Ronna Romney McDaniel is out complaining about this “calculated campaign tactic.”

Families and residents in Flint deserve better than being used as political pawns by a Presidential candidate. This visit is not an act of benevolence; it is a calculated campaign tactic – an attempt to grab headlines by a struggling campaign.

It is time to focus on solutions. As a candidate who proclaimed that the enemies she is most proud of are Republicans, I doubt that Hillary Clinton is here to contribute to the bipartisan effort to fix this crisis. The families in Flint deserve solutions, not a stunt that does nothing to help the city or the people who call it home.

FBI’s 5-Year Effort to Avoid Inspector General Scrutiny of Its Phone Dragnet Use

Screen Shot 2015-08-05 at 1.15.53 PMAs part of today’s Senate Judiciary Hearing on DOJ OLC’s decision to make DOJ’s Inspector General ask nicely before it gets certain kinds of materials it needs to conduct its work, John Cornyn asked what changed in 2010 to make the FBI start pushing back against sharing information freely with the IG.

Inspector General Michael Horowitz responded,

I was not the Inspector General at that time, but my understanding is that the memos and decisions from the legal counsel at the FBI followed several OIG reviews of the handling of National Security Letters, Exigent Letters, and other hard-hitting OIG reviews, because there was no other change in the law, no policy change, no regulatory change…

Horowitz is suggesting that because Horowitz’ predecessor, Glenn Fine, released reports that showed FBI abuse of national security programs, FBI started pushing back against sharing information. The claim is particularly interesting given that the Exigent Letters report, which was released in January 2010, significantly implicated FBI’s General Counsel’s office, including then General Counsel and now lifetime appointed judge (with Cornyn’s backing) Valerie Caproni.

The suggestion is also interesting given that Fine resigned in 2010 after starting an investigation into the use ofSection 215 and PRTT. It took years before DOJ had a working Inspector General again, resulting in a long delay before Congress got another report on how the government was using the phone dragnet.

All of which is all the more troubling, given that Horowitz revealed that,

Just yesterday, I’m told, in our review of the FBI’s use of the bulk telephony statute, a review that this committee has very much been interested in our doing, we got records with redactions, not for grand jury, Title III, or fair credit information, because those have been dealt with, but for other areas that the FBI has identified legal concerns about.

This is particularly troubling given that just weeks ago the USA Freedom Act mandated certain IG reviews of phone dragnet activities.

But the FBI is still obstructing such efforts.

Pentagon Finally Surrenders, Cancels New Purchase of Russian Helicopters Through Dealer Supplying Syria

Back in June, I wrote about the deceit employed by the Pentagon in going against the advice of SIGAR (pdf) and explicit language in the NDAA to purchase Russian Mi-17 helicopters through the arms dealer Rosoboronexport. Because Rosoboronexport has been supplying weapons to the Assad regime in Syria, the helicopter purchase took on additional levels of outrage. It appears that the Pentagon did get about half of the helicopters it wanted by claiming to use leftover 2012 funds (use of 2013 funds for the helicopters was banned in the NDAA), but they have now cancelled plans to use 2014 funds for the remaining helicopters that had been planned.

Both AP and Reuters inform us of the cancellation of the order. The Reuters story notes that the procurement system for the helicopters is the subject of an ongoing criminal investigation:

Reuters reported in August that the Defense Criminal Investigative Service had opened a criminal probe into the Huntsville, Alabama, Army aviation unit that oversees the Mi-17 program, and ties between the unit’s former chief and two foreign subcontractors.

Texas Senator John Cornyn did a bit of a victory dance over the cancellation. As described in the AP story:

Bipartisan opposition to the Mi-17 acquisition grew as the violence in Syria escalated and U.S. relations with Russia deteriorated. A growing number of lawmakers from both political parties objected to acquiring military gear from Rosoboronexport, which has provided Assad’s regime with weapons used against Syrian civilians.

“I applaud the Defense Department’s decision to cancel its plan to buy 15 additional Mi-17 helicopters from Rosoboronexport,” Sen. John Cornyn, R-Texas, said in an emailed statement. “Doing business with the supplier of these helicopters has been a morally bankrupt policy, and as a nation, we should no longer be subsidizing Assad’s war crimes in Syria.”

But this victory by opponents of the sale comes after a large victory by the Pentagon in the earlier battles:

Rosoboronexport announced Monday that 12 of the Mi-17s had been delivered to Afghanistan in the month of October. The shipments, the export agency said, reflected the joint effort between Russia and the U.S. to combat international terrorism.

The AP story spends a bit of time on how Mi-17’s were chosen: Continue reading

If Wanting to Reveal that All Americans’ Metadata Gets Swept Up Is Treason, Edward Snowden Is in Distinguished Company

Earlier this evening, Dianne Feinstein called Edward Snowden’s decision to leak NSA documents an act of treason.

“I don’t look at this as being a whistleblower. I think it’s an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.

The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.

“He violated the oath, he violated the law. It’s treason.”

Perhaps DiFi can be excused for her harsh judgment. After all, in addition to exposing the sheer range of surveillance our government is doing, Snowden made it very clear that DiFi allowed Director of National Intelligence James Clapper to lie to her committee.

And continues to allow Clapper’s lie to go unreported, much less punished.

But I thought it worthwhile to point out the many people who have committed to make the FISA Court Opinions describing, among other things, how the government’s abuse of Section 215 violated the Constitution.

In 2010, DOJ promised to try to declassify important rulings of law.

In 2010, as part of the same effort, Clapper’s office promised to try to declassify important rulings of law.

In 2011, prior to be confirmed as Assistant Attorney General, now White House Homeland Security Advisor Lisa Monaco promised, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible.”

All these people claimed they wanted to make FISC’s opinion, among other things, on the secret use of Section 215 public.

What Snowden released on Section 215 — just a single 215 order to Verizon, without details on how this information is used — is far, far less than what DOJ and ODNI and Lisa Monaco pledged to try to release. Given that the collection is targeted on every single American indiscriminately, it won’t tell the bad guys anything (except that they’ve been sucked into the same dragnet the rest of us have). And while it shows that FBI submits the order but the data gets delivered to NSA (which has some interesting implications), that’s a source and method to game the law, not the source or method used to identify terrorists.

So if Snowden committed treason, he did so doing far less than top members of our National Security establishment promised to do.

Wait.

There’s one more member of this gang of — according to DiFi — traitors committed to tell Americans how their government spies on them. There’s the Senator who said this on December 27, 2012.

I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions. If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.

Oh, wait! That was Senator Dianne Feinstein, arguing that they didn’t have time to pass an actual amendment, attached to the actual FISA Amendments Act renewal, forcing the government to turn over this secret law.

But she promised to write a letter!

And even, DiFi claimed (though similar promises to John Cornyn to obtain the OLC memo authorizing Anwar al-Awlaki’s killing went undelivered), to include a requirement in this year’s intelligence authorization requiring the government to turn over far more information on the government’s use of Section 215 than Snowden did.

I get that DiFi doesn’t agree with his method — that he leaked this rather than (!) write a letter. I get that Snowden has exposed DiFi for allowing Clapper lie to her committee, in part to hide precisely this information.

But in debates in the Senate, at least, DiFi has claimed to support releasing just this kind of information.

Did Susan Collins Switch Parties? Cause She Wanted OLC Memos, Too

I hate to waste an entire post on this.

But the NYT’s report last night that President Obama was going to capitulate to the Benghazi truthers rather than turn over memos revealing who and where he has been killing people — as well as all the secondary reporting on it — has made this claim.

Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.

The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos. [my emphasis]

On February 4, Susan Collins was among the 11 Senators who signed a letter asking for “any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

Perhaps Collins has been satisfied with the brief glimpse at the two memos it shared with the Committee back on February 7. Perhaps she — the Senator on the Intelligence Committee who asked the best questions about targeted killing efficacy — is not all that interested in the other memos the Administration is hiding, presumably along with uses of targeted killing she isn’t being briefed on. Perhaps she no longer supports the hinted hold-up for national security nominees.

But even on the Senate Intelligence Committee, the call for the targeted killing memos was a bipartisan affair (among those not on the committee, Mike Lee and Chuck Grassley also signed the letter, and Rand Paul sent his own demand for the memos). Heck, once upon a time, John Cornyn wanted to legislatively demand the memos.

Demanding that the President reveal what kind of targeted killing programs it supports is no hippie fetish. It is something that members of both parties have supported.

This Isn’t the Memo You’re Looking For

As important as it is to see the white paper DOJ gave Congress to explain its purported legal rationale, it is just as important to make clear what this white paper is not.

First, is it not the actual legal memos used to authorize the killing of Anwar al-Awlaki and who knows who else. As Michael Isikoff notes in his story, the Senators whose job it is to oversee the Executive Branch — even the ones on the Senate Intelligence Committee that are supposed to be read into covert operations — are still demanding the memos, for at least the 12th time. The release of this white paper must not serve to take pressure off of the White House to release the actual memos.

Which brings me to an equally important point: memos. Plural.

NBC suggests and the close tracking appears to support that this white paper is a version of the OLC memo written in June 2010 and reported on — the last time there was clamor to release the targeting killing authorization publicly — by Charlie Savage.

But as Colleen McMahon strongly hinted last month, that doesn’t mean that this white paper — and the OLC memo which it summarizes — describe the legal basis actually used to kill Anwar al-Awlaki.

Indeed, Ron Wyden has been referring to memos, in the plural, for a full year (even before, if Isikoff’s report is correct, this white paper was first provided to the Committees in June 2012).

And there is abundant reason to believe that the members of the Senate committees who got this white paper aren’t convinced it describes the rationale the Administration actually used. Just minutes after Pat Leahy reminded the Senate Judiciary Committee they got the white paper at a hearing last August, John Cornyn said this,

Cornyn: As Senator Durbin and others have said that they agree that this is a legitimate question that needs to be answered. But we’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight and to legislate where we deem appropriate on behalf of our constituents. So it is insufficient to say, “pretty please, Mr. President. pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided. [my emphasis]

More importantly, one question that Wyden keeps asking would be nonsensical if he believed the content of this white paper reflected the actual authorization used to kill Awlaki. [Update: I take this part back — go read this post for why Wyden keeps asking this question.]

This white paper, after all, speaks repeatedly of the AUMF and invoked Congressional approval (this is just a limited sampling).

The United States is in an armed conflict with al-Qa’ida and its associated forces and Congress has authorized the President to use all necessary and appropriate force against those entities. See Authorization for Use of Military Force.

[snip]

Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated from a use of force abroad authorized by the AUMF or in national self-defense.

[snip]

None of the three branches of the U.S. Government has identified a strict geographical limit on the permissible scope of the AUMF’s authorization.

[snip]

In such circumstances, targeting a U.S. citizen of the kind described in this paper would be authorized under the AUMF and the inherent right to national self-defense.

[snip]

And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force. [my emphasis]

But Ron Wyden, who has gotten this white paper, still keeps asking this question.

Is the legal basis for the intelligence community’s lethal counterterrorism operations the 2001 Congressional Authorization for the Use of Military Force, or the President’s Commander-in-Chief authority?

Now, to be fair, those bolded sections do hint at something else, the reliance on inherent authority. And in an early passage laying out the authorities, the white paper lists that Article II authority first, well before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate force against the enemy, and the existence of an armed conflict with al-Qa’ida under international law. [my emphasis]

But everything about this white paper uses the AUMF — that Congressional authorization — as the key authorization.

This white paper admits the President claims he could kill an American solely on his inherent Article II powers. But that’s not the argument laid out in the white paper.

Now, there are other reasons to believe this is not the authority relied on — at least not for all the attempts to kill Awlaki. After all, when they first tried to kill him on December 24, 2009, the Intelligence Community didn’t believe him to be operational; at that point, according to the knowledge the government had at that time, Awlaki would not meet the three criteria laid out in this memo.

Never fear though! This white paper makes clear that the government may not even need to fulfill those requirements before it offs a US citizen.

As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation against a U.S. citizen lawful in other circumstances.

Even as shoddy as this argument is — as forced its interpretation of the word “imminent” and the court precedents — this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the President to kill an American citizen.

And that, I fear, is what is in the real memos.

Update: Note, too, that 9 of the 11 Senators who demanded the memo have seen this white paper (all but Tom Udall and Jeff Merkley are on either the Senate Intelligence of Judiciary Committee). Yet they’re still demanding to know the “executive branch’s official understanding of the President’s authority to deliberately kill American citizens.”

Was Aaron Swartz’ Effort to FOIA Bradley Manning’s Treatment Why DOJ Treated Him So Harshly?

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As I mentioned earlier, John Cornyn asked Eric Holder whether Aaron Swartz was prosecuted because of his FOIAs.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

I have shown earlier how, during the period when the Grand Jury was investigating Swartz, Swartz was FOIAing stuff that the prosecutor seems to have subpoeaned as part of a fishing expedition into Swartz. I have also shown that a FOIA response he got in January 2011 suggests he may have been discussed in a (presumably different) grand jury investigation between October 8 and December 10, 2010. And Jason Leopold has also pointed to some interesting coincidences in Swartz’ FOIAs.

But there’s a series of FOIAs Swartz submitted that almost certainly pissed off the government: he FOIAed tapes that would have had Bradley Manning, describing in his own words, how he was being treated at Quantico.

On December 23, 2010, David House blogged about the treatment Bradley Manning was being subjected to at Quantico (which has since been deemed illegal).

On December 27, Swartz asked for the following in FOIA from the Marine Corps:

Any records related to Bradley Manning or his confinement in Quantico Brig.

In particular, please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm. These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records.

The timeline that ensued is below, with other significant dates included.

Of particular interest? The Secret Service didn’t get warrants to investigate Swartz immediately after his initial arrest, in spite of the fact Secret Service Agent Michael Pickett offered to get a warrant on January 7. In fact, Secret Service didn’t get warrants until February 9, over a month after his initial arrest. (Update: See this post for more on the delay.)

That’s the day Swartz FOIAed the Army Criminal Investigative Service for the tapes on Manning’s treatment.

More odd still, the Secret Service didn’t immediately use the warrants to obtain the hardware seized in his arrest; the warrant to search his hardware expired and Secret Service eventually got a second one. But Secret Service did search Swartz’ home two days after they got that warrant, on February 11–two days after he asked ACIS for the tape that would have Manning describing how he was being treated.

Suffice it to say that Swartz was pursuing the same information that got State Department Spokesperson PJ Crowley fired just as USSS intensified its investigation of him.

While I don’t think Swartz’ pursuit of details on Manning’s treatment would be the only reason they would deal with him so harshly, the Obama Administration clearly was dealing harshly with those who were critical of the treatment of Manning.

Update: This post has been updated for accuracy.


December 23, 2010: David House blogs about Manning’s treatment, effectively fact-checking DOD’s claims.

December 27, 2010: Swartz FOIAs the recording of House’s visit to Manning, which would have captured Manning describing in his own words how he was being treated.

December 29, 2010: Initial response on Manning brig FOIA.

January 4, 2011: MIT finds Swartz’ computer. Secret Service takes over the investigation.

January 6, 2011: Swartz arrested.

January 7, 2011: Twitter administrative subpoena to several WikiLeaks team members revealed.

January 17, 2011: Protest outside of Quantico for Manning.

January 18, 2011: Manning placed on suicide risk.

January 20, 2011: Swartz’ Manning brig FOIA transfered to Quantico CO.

February 1, 2011: Quantico tells Swartz Manning brig FOIA needs to go to Army Criminal Investigative Service.

February 9, 2011: Swartz FOIAs ACIS for Manning brig information.

February 9, 2011: Secret Service obtains warrant to search Swartz’ hardware and apartment, followed by a warrant to search his office.

February 9, 2011: WSJ reports WikiLeaks investigation cannot prove Assange induced Manning to leak documents.

February 11, 2011: Secret Service searches Swartz’ house and office, but not the hardware primarily implicated in the crime purportedly being investigated.

February 22, 2011: Warrants on Swartz’ hardware expire.

February 24, 2011: Secret Service obtains new warrant for hardware. Initial response from ACIS to Manning brig FOIA.

February 28, 2011: ACIS responds to Swartz’ Manning FOIA, stating,

… the requested documents are part of an ongoing Army court-martial litigation and are not releasable to the public at this time. This request will be closed. Please submit your request at a later time.

March 2, 2011: Swartz responds to this rejection:

On the 28th of February, the US Army’s Freedom of Information Act Officer declined to release documents I requested under FOIA/PA because they “are part of an ongoing Army court-martial litigation.”

Being part of ongoing litigation is not a valid exemption to the FOIA or the Privacy Act.

There are narrow exemptions for certain types of release that interfere with law enforcement activities, but the Army has not claimed these exemptions nor explained why they apply. Furthermore, the normal procedure is to collect the documents and then evaluate them to see whether any portions of them qualify for the exemption. It appears the Army did not collect documents in response to my request at all, so I do not see how it could have evaluated them.

I therefore appeal my request in its entirety.

March 3, 2011: ACIS admits Swartz is correct:

 You are absolutely correct and I want to apologize for sending you the wrong information. This request is being sent to the Initial Denial Office (IDA) today. Please give them a couple of days to receive it.

March 4, 2011; ACIS sends another letter:

Because this request has been denied this request is being sent to the Initial Denial Office (IDA).

March 11, 2011: PJ Crowley criticizes Manning’s “ridiculous, counterproductive, and stupid” treatment at event at MIT. Jake Tapper asks Obama about Crowley’s comment at press conference.

March 13, 2011: White House forces PJ Crowley to resign for criticizing treatment of Manning.

March 18, 2011: ACIS rejects his request, citing an ongoing investigation.

April 19, 2011: DOD announces Manning will be moved to Leavenworth.

John Cornyn Asks Eric Holder if Aaron Swartz Prosecuted because of FOIA Requests

John Cornyn just sent a letter to Eric Holder asking a series of questions about the Aaron Swartz prosecution. (h/t Julian Sanchez) Many of them are utterly appropriate coming from a member of the Senate Judiciary Committee: why Carmen Ortiz said the prosecution was “appropriate,” whether DOJ’s prior investigations, plural, of Swartz had had an influence on their conduct, why Ortiz filed the superseding indictment. Kudos to Cornyn for conducting oversight, as intended.

But here’s a question I didn’t expect, the second of seven questions.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

It’s one thing to ask whether Swartz was targeted–and he appears to have been–for his advocacy on Open Access and Internet freedom.

But to ask whether this was retaliation for his use of FOIA? As far as I know, only Jason Leopold and I have even looked at his FOIAs in relation to his prosecution, and only for insight onto how he responded to it.

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