John Yoo

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Domestic Collection and Stellar Wind

I’m in the middle of comparing John Yoo’s May 17, 2002 letter to Colleen Kollar-Kotelly (which is largely the November 2, 2001 justification he wrote for Stellar Wind) with Jack Goldsmith’s May 6, 2004 memo on Stellar Wind, which reined in some aspects of Stellar Wind. And I realized something about the authorization process.

On page 17 of his memo, Goldsmith describes the previous opinions issued by OLC. The discussion is largely redacted, but it does describe say the October 4, 2001 memo “evaluated the legality of a hypothetical electronic surveillance program,” whereas the November 2, 2001 memo “examined the authorities granted by the President in the November 2, 2001 Authorization of STELLAR WIND and concluded that they were lawful.”

Already, that’s an interesting assertion given that the Yoo letter doesn’t do that entirely. First, at least in the letter to Kollar-Kotelly, Yoo also treated the program as hypothetical.

Electronic surveillance techniques would be part of this effort. The President would order warrantless surveillance in order to gather intelligence that would be used to prevent and deter future attacks on the United States. Given that the September 11 attacks were launched and carried out from within the United States itself, an effective surveillance program might include individuals and communications within the continental United States. This would be novel in two respects. Without access to any non-public sources, it is our understanding that generally the National Security Agency (NSA) only conducts electronic surveillance outside the United States that do not involve United States persons. Usually, surveillance of communications by United States persons within the unites states is conducted by the FBI pursuant to a warrant obtained under the Foreign Intelligence Surveillance Act (“FISA”). Second, interception could include electronic messages carried through the internet, which again could include communications within the United States involving United States persons. Currently, it is our understanding that neither the NSA nor law enforcement conducts broad monitoring of electronic communications in this matter within the United States, without specific authorization under FISA.

[snip]

Thus, for example, all communications between United States persons, whether in the United States or not, and individuals in [redacted–likely Afghanistan] might be intercepted. The President might direct the NSA to intercept communications between suspected terrorists, even if one of the parties is a United States person and the communication takes place between the United States and abroad. The non-content portion of electronic mail communications also might be intercepted, even if one of parties is within the United States, or one or both of the parties are non-citizen U.S. persons (i.e., a permanent resident alien). Such operations would expand the NSA’s functions beyond the monitoring only of international communications of non-U.S. persons. [my emphasis]

Importantly, these hypothetical descriptions come from the section of Yoo’s letter before it appears to begin tracking his earlier memo closely. So it’s unclear whether this description of Stellar Wind matches the one in the November 2 memo. It’s certainly possible that Yoo gave an incomplete version of what he had in the earlier memo or even pulled in (hypothetical) language from the October 4 memo. It’s possible, too, that language on domestic content collection reflected a retroactive review Yoo did of the first authorization. (An extended discussion of how Yoo’s early memos track the Authorizations — including discussion of another hypothetical memo Yoo wrote on September 17 — starts at PDF 361.)

Of particular interest, this hypothetical description includes the possibility of intercepting entirely domestic Internet communications (see emphasized language). We know — from the unredacted NSA Stellar Wind IG Report and even from the redacted Joint IG Report — that was something included in the first presidential Authorization, but not the subsequent ones.

The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for domestic collection.

We also know NSA did collect some domestic collection — on about 3,000 selectors, possibly triggered to non-US persons within the US — at least until Stellar Wind got transitioned to FISA in 2009.

This is a minor, but potentially important one. Yoo was writing hypothetical authorizations for stuff the NSA later pretended not to be authorized to do, but was doing. Those earlier hypothetical authorizations didn’t go away. And therefore, no matter what the authorizations said, there’d still be that authorization sitting there.

The Obama Administration Almost Doubled Down on Yoo’s Illegality

Over at JustSecurity the other day, ACLU’s Patrick Toomey argued that the Administration’s current interpretation of FISA — especially its embrace of upstream surveillance — means the Obama Administration has gone beyond John Yoo’s thinking on surveillance as exhibited in his May 17, 2002 letter to FISC judge Colleen Kollar-Kotelly.

Perhaps most remarkably, however, the Obama Justice Department has pressed legal theories even more expansive and extreme than Yoo himself was willing to embrace. Yoo rounded out his Stellar Wind memo with an effort to reassure Judge Kollar-Kotelly that the government’s legal interpretation had limits, saying: “Just to be clear in conclusion. We are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of communication.” But that is essentially the power the NSA claims today when it conducts Upstream surveillance of Americans’ Internet communications. The NSA has installed surveillance equipment at numerous chokepoints on the Internet backbone, and it is using that equipment to search the contents of communications entering or leaving the country in bulk. As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

I’m not sure I’m convinced. After all, the Administration claims it is not examining the contents of all international letters, but rather only looking at those where selected identifiers show up in data packets. Yeah, I know it’s a bullshit argument, but they pretend that’s not searching the contents, really. Moreover we have substantial reason to believe they were doing (some) of this anyway.

But there is a curious relationship between a claim Yoo made in his letter and the Obama Administration’s views on FISA.

In the letter, Yoo writes,

FISA purports to be the exclusive means for conducting electronic surveillance for foreign intelligence, … FISA establishes criminal and civil sanctions for anyone who engages in electronic surveillance, under color of law, except as authorized by statute, warrant, or court order. 50 U.S.C. § 1809-10. It might be thought, therefore, that a warrantless surveillance program, even if undertaken to protect the national security, would violate FISA’s criminal and civil liability provisions.

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities. FISA can regulate foreign intelligence surveillance only to the extent permitted by the Constitution’s enumeration of congressional authority and the separation of powers.

[snip]

[A]s we explained to Congress during the passage of the Patriot Act, the ultimate test of whether the government may engage in foreign surveillance is whether the government’s conduct is consistent with the Fourth Amendment, not whether it meets FISA.

This is especially the case where, as here, the executive branch possess [sic] the inherent constitutional power to conduct warrantless searches for national security purposes.

Effectively, Yoo is saying that even if they blow off FISA, they will be immune from the penalties under 50 USC §1809-10 so long as what they were doing fulfilled the Fourth Amendment, including an expansive reading of special needs that Yoo lays out in his memo. (Note, this was explained in the DOJ Stellar Wind IG Report — starting at PDF 47 — but this letter makes it more clear.)

As a reminder, on two occasions, John Bates disagreed with that interpretation, first in 2010 when he ruled NSA couldn’t continue to access the five years of data it overcollected under the PRTT Internet dragnet, and then again in 2011 when he said the government couldn’t disseminate the illegally collected upstream data (and Vaughn Walker disagreed in a series of rulings in the Al Haramain case in 2010, though the 9th Circuit partially overturned that in 2012). We know, thanks to Snowden, that the government considered appealing the order. And in his summary of the resolution of this issue, Bates made it clear that the government’s first response was to say that limits on illegally collected data don’t apply.

However, issues remained with respect to the past upstream collection residing in NSA’s databases. Because NSA’s upstream collection almost certainly included at least some acquisitions constituting “electronic surveillance” within the meaning of 50 U.S.C. § 1801 (f), any overcollection resulting from the government’s misrepresentation of the scope of that collection implicates 50 U.S.C. § 1809(a)(2). Section 1809(a)(2) makes it a crime to “disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. The Court therefore directed the government to make a written submission addressing the applicability of Section 1809(a), which the government did on November 22, 2011. See [redacted — probably a reference to Bates’ July 2010 opinion], Oct. 13, 2011 Briefing Order, and Government’s Response to the Court’s Briefing Order of Oct. 13, 2011 (arguing that Section 1809(a)(2) does not apply).

Ultimately, though, the government not only (said it) destroyed the illegal upstream data, but claims to have destroyed all its PRTT data in a big rush (so big a rush it didn’t have time to let NSA’s IG certify the intake collection of data).

And it replaced that PRTT program by searching data under SPCMA it claimed to have collected legally … somewhere.

I don’t pretend to understand precisely went on in those few weeks in 2011, though it’s clear that Obama’s Administration at least considered standing by the spirit of Yoo’s claim, even though the opinion itself had been withdrawn.

But I do know that at least through 2009, the government treated all its PRTT and Section 215 data as EO 12333 data, and in fact the providers appear not to have distinguished it either (more on this in upcoming days, hopefully). That is, it was collecting data with FISC sanction that it treated as data it collected outside of FISC sanction (that is, under EO 12333), and it was ignoring the rules FISC imposed.

Which leads me to wonder whether the government still doesn’t believe it remains immune from penalties laid out in FISA.

John Yoo’s Two Justifications for Stellar Wind

Because I’m a hopeless geek, I want to compare the what we can discern of the November 2, 2001 memo John Yoo wrote to authorized Stellar Wind with the letter he showed FISA Presiding Judge Colleen Kollar-Kotelly on May 17, 2002. The former is almost entirely redacted. But as I’ll show, the two appear to be substantially the same except for small variations within paragraphs (which possibly may reflect no more than citations). The biggest difference is that Yoo’s memo appears to have two pages of content not present in the letter to Kollar-Kotelly.

What follows is a comparison of every unredacted passage in the Yoo memo, every one of which appear in exactly the same form in the letter he wrote to Kollar-Kotelly.

The first unredacted line in Yoo’s memo — distinguishing between “electronic surveillance” covered by FISA and “warrantless searches” the President can authorize — appears in this paragraph in the letter.

FISA Safe Harbor

The line appears on page 7 of Yoo’s memo, but page 5 of his letter (which also includes some foofy introductory language for Kollar-Kotelly). That says there’s already 2 pages of information in Yoo’s memo that doesn’t appear in the letter. Yoo’s description of the surveillance program in the letter to Kollar-Kotelly is actually fairly short (and written entirely in the conditional voice), so there may be more of that in the actual memo. Also, anything that didn’t involve electronic surveillance — such as the collection of financial data — would not necessarily be relevant to FISC. But as I argue below, it’s also possible Yoo made claims about executive power in those two paragraphs that he rewrote as a two-page addition to for Kollar-Kotelly’s benefit.

The next unredacted passage in the memo consists of the first sentences of these two paragraphs.

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They appear on page 9 of Yoo’s memo and page 7 of the letter, and it appears that the space in between the two is consistent — suggesting that the interim content remains the same.

The next unredacted passage appears on page 12 of Yoo’s memo, page 10 of the letter.

FISA Restrict

While the general pagination still seems to be roughly tracking (again, suggesting the interim content is at least similar), the spacing of this paragraph is clearly different (note how the sentence begins in a different place in the column), suggesting Yoo may have made an even stronger defense of inherent authority in his memo, or perhaps that OLC has precedents for such a claim that Yoo thought inappropriate to share with the FISC. It’s possible this and later paragraph spacing differences arise from classification marks at the beginning of each paragraph, except the passages from the beginning of paragraphs seem to match up more closely than those from the middle of them.

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The next unredacted passage, on page 17 of Yoo’s memo and 15 of the letter, extend the claim that Congress can’t limit the President’s use of pen registers used to defend the nation. That’s followed closely by Yoo’s shift to arguing that intelligence gathering “in direct support” of military operations does not trigger the Fourth Amendment.

Intel Military Ops

Continue reading

That Time When John Yoo Deemed EO 12333 Optional (Working Thread)

I Con the Record has just released the May 17, 2002 letter John Yoo wrote to Colleen Kollar-Kotelly justifying Stellar Wind. This either lays out for the first time or repeats Yoo’s claim — which I first reported in 2007, based on a Sheldon Whitehouse Senate address, here — that the President doesn’t have to follow EO 12333.

This will be a working thread.

(2) Note Yoo says the attacks caused 5,000 deaths, well beyond the time when authorities knew it to be closer to 3,000.

(2) Yoo mentioned the anthrax attack. Did NSA use Stellar Wind to investigate it?

(2) Yoo uses a more moderate justification here — military being deployed to protect buildings — than Goldsmith did in his 2004 memo, where he talked about specific military flights.

(2) Check EO on creating Homeland Security office on domestic program.

(2) As soon as Yoo starts talking about Stellar Wind, he adopts the conditional tense: “Electronic surveillance techniques would be part of this effort.” This of course follows on Yoo admitting Congress modified FISA (though he doesn’t name the statute).

(2) Note in this really squirrelly hypothetical section, Yoo says the surveillance could include email “within” the US, which would be entirely domestic.

(2-3) Note throughout Yoo describes Bush as “Chief Executive.”

(3) Yoo points to absence of a charter as basis for doing whatever NSA wants.

(3) “Congress, however, has not imposed any express statutory restrictions on the NSA’s ability to intercept communications that involve United States citizens or that occur domestically.” (based on the absence of such language in NSA)

(4) I believe the second redaction is designed to enable the wiretapping of people claimed to be tied to the anthrax attack.

(5) Here’s the passage that said EO 12333 is optional.

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(4-5) I find Yoo’s language the more troubling given what precedes it — the rationale.

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I’ll come back to this, but note how “domestic” gets defined here. Much of this is still on the books and explains why Muslims get treated differently.

(5, 6) Note Yoo’s explanation for doing this off the books.

  1. Need for secrecy
  2. Inability to get FISC to approve bulk content collection or domestic metadata collection
  3. No knowledge of identity of target

That’s not speed, which later became the excuse

(5) “FISA only provides a safe harbor for electronic surveillance, and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.”

(5) Note Yoo refers to the metadata dragnet as “general collection,” which sounds an awful lot like a general warrant.

(7) The redactions on 7 are especially interesting given likelihood they conflict with either what K-K, Bates, or Howard subsequently approved.

(8) The timing of this is remarkable. This letter was written on the same date that Ashcroft changed the rules on the wall, which Lamberth unsuccessfully tried to impose some limits on. Then, on July 22, OLC further expanded the GJ sharing address in FN 8.

(8) Note, again, how Yoo is rewriting Keith and Katz.

(10) again, Yoo seems to be laying the groundwork for back door searches, which makes me wonder whether that’s why this got released?

(12) I don’t believe this border exception appears in Goldsmith. Which suggests there’s something with the way this was applied that is particularly problematic.

(13) This must be the language in question. Goldsmith used another means to justify cross-border collection, while admitting it outright.

(14) This language also disappears from later justifications, suggesting it is part of the problem.

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The discussion continues onto the next page. It is of particular interest that K-K got this letter, given that her category distinctions probably addressed these distinctions.

(15) Bingo. This might be a very simple explanation for why they had to go to FISC.

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(17) This passage about picking the Defense Secretary rather than AG is pretty much what I noted in my post on the underyling 4A argument, but it has ramifications for the post-2004 program. Also note how closely it piggybacks with the changes to AG guidelines and the

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This language explains why they weren’t looking in Stellar Wind for Brady material, and also explains how they do parallel construction (which plays out in the IG Report).

(19) This section lays out the need for the scary memos, without revealing to K-K they exist.

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(21) The big redacted section–the biggest redaction in the letter–suggests they’re still hiding the capture and pull up method of this, and therefore the sheer bulk of all this. That’s all the more interesting given that the wall was coming down at that moment. The other redactions in this section, too, seem to track the indexing function. Again, it’s interesting K-K had read (or reviewed) this before the PRTT discussion.

 

 

 

 

The New Stellar Wind Language

Charlie Savage got another drip drip drip of language declassified from the Joint IG Stellar Wind reports (his story, annotated document).

The new language reveals a bit more about what Alberto Gonzales included in his March 11, 2004 authorization that led Jim Comey to renew his resignation threat on March 16, 2004. And it reiterates a detail about the March 19, 2004 modification I’ve covered repeatedly (though leaves the other at least two March 19, 2004 modifications, as well as the April 2 one(s), entirely redacted).

One thing that did get changed on March 19 — the exclusion of the Iraq targeting John Yoo had authorized in 2003 — is now unredacted. That language only permits the use of Stellar Wind with al Qaeda, groups affiliated with al Qaeda, or “another group that [the President determines] for the purposes of this Presidential Authorization is in armed conflict with the United States and poses a threat of hostile action within the United States.” This language is precisely consistent with language in the May 6, 2004 Jack Goldsmith opinion I’ve noted before — indeed, the newly unredacted language appears unredacted in that memo (see page 16). Goldsmith situates the broader-than-al Qaeda authorization, in part, in this language in the 2001 AUMF.

The Congressional Authorization contains another provision that is particularly significant in this context. Congress expressly recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United Stales.” Congressional Authorization, pmbl. That provision gives express congressional recognition to the President’s inherent constitutional authority to take action to defend the United States even without congressional support.

Note, Savage misstates that the change only permits targeting “Al Qaeda, rather than allowing it to be used for other types of international counterterrorism investigations,” ignoring that the President (and Goldsmith’s subsequent OLC memo) permitted the inclusion of other international terrorist groups. That may reflect reporting that will show up in his book, but the language adopted pursuant to DOJ complaints, both in the March 19 authorization and in Goldsmith’s memo, clearly permits targeting of more than just al Qaeda at the President’s prerogative, so long as it actually has to do with “international” terrorism (Goldsmith distinguishes international terrorism from domestic in an effort to comply with the Supreme Court Keith decision, but not in a way that I believe to be adequate in logic or, since Goldsmith’s opinion, implementation).

We don’t know whether two other things newly revealed to be in the March 11, 2004 memo got changed, because we don’t see the other March 19 modifications.

First, Gonzales explicitly asserted in the March 11 authorization that Article II authority “displace[s] the provisions of law, including the Foreign Intelligence Surveillance Act and chapter 119 of Title 18 of the United States Code (including 18 U.S.C. §2511(f) relating to exclusive means), to the extent any conflict between provisions and such exercises under Article III.” This idea may have been tweaked in one of the modifications, given that Goldsmith’s memo largely provides an explanation for how FISA got displaced via the AUMF, but I also suspect that, even as problematic as Goldsmith’s memo is, it was probably stronger than any modifications before he issued the memo.

Far more interesting is the language Gonzales included in the March 11 authorization designed to retroactively authorize the bulk collection of entirely domestic metadata. It did so by claiming that metadata “is ‘acquired’ for the purposes of subparagraph 4(b) above when, and only when, the Department of Defense has searched for and retrieved such header/router/addressing-type information, … and not when the Department obtains such header/routing/addressing-type information.” Effectively, that March 11 authorization — and Gonzales’ effort to pretend they hadn’t been violating the law for 3 years — is the source of the Orwellian definition of “collect” that James Clapper relied on when caught in his lies about dragnets. There is a great deal in Goldsmith’s opinion on metadata that remains redacted, so Goldsmith may well have amended this formula. And I think FISC operates with a more reasonable definition of “collect” than the IC does (which ought to be a problem!). But some version of that definition covers probably even more invasive spying of US persons under SPCMA, and that language and logic was always withheld from FISC. My strong suspicion is that Goldsmith did change this. I even think it remotely possible that the scope of SPCMA has been modified since James Baker became FBI General Counsel.

Regardless of whether that definition was reined in in the modifications and/or Goldsmith’s memo, however, that’s still the way the government thinks.

John Yoo’s Assistance in Starting Iraq War Might Help Obama Avoid an Iran War

Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).

The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.

Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.

Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.

That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.

Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.

This memo authorized the Executive to withhold WMD information in Bush’s 2003 State of the Union address

First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.

Boy how wrong was I. Boy how inadequately cynical was I.

Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.

Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:

It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.

Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?

In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.

On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.

Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.

This memo means Obama doesn’t have to share anything about the Iran deal it doesn’t want to

Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.

By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.

If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.

Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.

I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).

A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations  — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.

The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.

I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.

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

One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.

On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This appears to have led directly to Comey drafting his resignation letter.

But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).

Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]

I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).

The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.

And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.

But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.

Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.

That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.

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

Footnote 147 of the DOJ IG Report on Stellar Wind (PDF 462-3) modifies a discussion of the discussions on March 6 and 7, 2004 in which Jack Goldsmith and Patrick Philbin informed David Addington and Alberto Gonzales that they could not reauthorize Stellar Wind — in spite of applying a relaxed standard of review — because the White House wanted them to affirm that John Yoo’s November 2, 2001 memo had covered the program, yet Yoo’s memo had not included all aspects of it (this likely pertains to the collection of Internet metadata from telecom switches, though it may also pertain to the collection on Iraqi targets).

After reporting Gonzales’ claimed reaction to the meetings at which DOJ’s lawyers told the White House the program was illegal, the report notes that Gonzales was lawyered up at his IG interview, but later provided further elaboration in writing.

Later on March 6, Goldsmith and Philbin went to the White House to meet with Addington and Gonzales to convey their conclusions that the [2 lines redacted] According to Goldsmith’s chronology of these events, Addington and Gonzales “reacted calmly and said they would get back with us.” Goldsmith told us that the White House was not worried that it was “out there,” meaning that it was implementing a program without legal support.

On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin’s interpretation of Yoo’s memoranda and on the need to change the scope of the NSA’s collection. Gonzales told us that he recalled the meetings of March 6 and March 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to “find a way forward.”147

147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal support for the program and [redacted]. Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of the report, he stated that he would not have brought Goldsmith and Philbin’s “concerns” to the attention of the President because there would have been nothing for the President to act upon at this point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President’s attention if the President could make a decision about them.

Remember the situation Gonzales would have been in. The interview (and probably, though not certainly, the review of the draft) would have taken place in fall to winter 2008, when Bush was still in office.

Thus, the interview would have happened during the period or just after DOJ IG conducted an investigation into what amounted to a CYA file Gonzales had carried around in his briefcase — documents and draft documents relating to all the illegal programs in which he had been involved, including his notes pertaining to the hospital confrontation over Stellar Wind. There’s reason to believe he was referred for that investigation precisely because it was recognized as a CYA file and he was no longer regarded as loyal on surveillance issues.

In addition, at the time, too, DOJ was still considering whether to file charges against Gonzales for the US Attorney scandal. So it makes sense that Gonzales’ retained lawyer, George Terwilliger, was there (and it is somewhat surprising that, given that John Ashcroft got away without cooperating, Terwilliger let him cooperate).

But then there is Emmet Flood.

Both before and after his tenure in the White House Counsel’s office — where he was brought in to deal with the scandals of the late Bush Administration — Flood was (and remains) a partner at Williams & Connolly. And not just a partner. He was formally part of Dick Cheney’s defense team when Patrick Fitzgerald was honing in on the Vice President for leaking Valerie Plame’s identity, and Flood would remain involved in protecting Cheney even after moved onto the taxpayer dime.

Emmet Flood may have been there in the name of protecting Executive Privilege, but it was not Bush’s privilege Flood was protecting.

So we learn that on March 6, 2004, Goldsmith and Philbin tell Gonzales and Addington that parts of Stellar Wind have never been legal. On March 7, 2004, Gonzales and Addington come back and tell OLC’s lawyers they’re wrong.

And when DOJ’s IG asked Gonzales whether — in the interim day — he had informed the President about this, Cheney’s defense lawyer pipes up and tells him not to answer. Given that Bush apparently learned new details of all this 4 days later when Comey and Robert Mueller would tell him directly, the answer is no (which is consistent with what Gonzales said when Cheney’s lawyer wasn’t present).

Which leaves the logical and thoroughly unsurprising conclusion — but one Cheney’s taxpayer funded lawyer didn’t want included in a legal document — Cheney (who is not a lawyer, nor does he have Article II authority directly) is the one who told Gonzales and Addington to dig in.

Update: Flood also had Gonzales refuse to answer a question about whether anyone had thought to include DOJ in the meeting with Congress.

John Yoo Approved the Stellar Wind Authorization that First Covered Iraq

As I noted, one interesting aspect of reading the Stellar Wind IG Reports is tracking the things that show up in the Snowden-leaked draft IG Report that are completely redacted in the DOJ-released report.

One thing that is completely redacted is that Stellar Wind was used to spy on Iraqi targets (or US targets alleged to be Iraqi targets during the war?), as explained here.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion oflraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004.

Given the timing, this almost certainly is one of the things Jack Goldsmith shut down in the first set of modifications in March 2004 (there appears to have been a parallel effort in 2004 to stop treating Iraqi prisoners as terrorists who could be tortured).

And while the officially released IG Reports hide all mention of this, there is one detail that says volumes. Amid the section describing all the things Patrick Philbin found to be problematic in Yoo’s OLC memos authorizing the program, this footnote appears (at PDF 442).

See Presidential Authorization of April 22, 2003 at para. 4(b)(i) & (ii). The April 22, 2003, Authorization was the only Authorization personally approved as to form and legality by Yoo. He approved the Authorization on April 18, 2003; five days before the date of his talking points memorandum.

John Yoo, not Attorney General Ashcroft, signed the Authorization that went into effect on April 22, 2003.

This Authorization was the first issued after Tenet declared Iraq terrorists on March 28, 2003 (I’ve added the Authorization dates here).

As it happens, that Authorization was also the last or second-to-last one signed while Yoo remained at DOJ. He left in June 2003 because Ashcroft had refused to let him assume the OLC AAG position after Jay Bybee moved onto his sinecure on the 9th Circuit.

That’s not the last crazy thing Yoo did while at OLC: at roughly the same time he was free-lancing “Legal Principles” documents pretend-authorizing torture techniques that the original Bybee memo had not approved.

But I find it interesting that one of the last things Yoo did was sign an authorization to use a program purportedly focused on terrorists to surveil targets (who must in some part be in the US) related to a war of choice.

Government’s Assassination of Anwar al-Awlaki Used “Significantly Different” EO 12333 Analysis

Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)

But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.

The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,

Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.

I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.

At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.

But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.

Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.

I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.

But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.

One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.

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Emptywheel Twitterverse
JimWhiteGNV @biasedreporter Not that I've seen on either front.
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JimWhiteGNV @biasedreporter He gets attacked all the time because he's good. I'm sure he laughed at it taking this long to get a hit piece in Politico.
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JimWhiteGNV RT @kirkmurphy: You speak for Iraq war crimes, @DavidFrum. You earned Nuremberg's short drop,but life in The Hague will do. #cdnpoli https:…
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bmaz @RMFifthCircuit @WerlySportsLaw In some fairness, CA8 has cleared a lot of crim cases lately, maybe were just backed up on the impt stuff.
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JimWhiteGNV RT @davidsirota: You represent an administration that has used the Espionage Act against whistleblowers https://t.co/7mFAtZ9yDl https://t.c…
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bmaz @RMFifthCircuit So then they would affirm if CA2 did?? Not sure I buy their concern for split. But, dang, "something" is going on!
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bmaz @RMFifthCircuit Not sure why they would do that, but who knows?
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JimWhiteGNV RT @ChMadar: Good to see an op-ed on a war crime. Bad to see few op-eds about Afghan War's big picture: strategy, costs, morality https://t…
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emptywheel That's right: When do we get our 5th anniversary OBL porn stash reenactment, Intel Community? WHEN!?!?!?! https://t.co/Nln8rvneO3
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JimWhiteGNV @samsteinhp Curt Schilling, Urban Meyer
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bmaz RT @AriMelber: Breaking: No charges in VA tasing death Officer who tased 15x said suspect grabbed it - but his hands were cuffed: https://…
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JimWhiteGNV RT @kevinjonheller: You mean the doctor who gave fake vaccines, discrediting Western medicine and causing untold suffering to innocents? ht…
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