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Republican Complaints about Phone Records Back Democratic Impeachment Case

Way back in 2001, Victoria Toensing wrote an article justifying the subpoena of phone records of her future client, John Solomon, to find out who leaked details to him that Democratic Senator Robert Torricelli had been picked up on a wiretap of a mob figure. In it, she justified serving limited subpoenas, approved by Robert Mueller, on a third party carrier to find out who had committed a crime. She emphasized there was nothing political about the subpoena of Solomon’s phone records.

By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press’s constitutional role.

The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter’s telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.

Were those conditions met in Solomon’s case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena — Ashcroft having recused himself. Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued — incorrectly — that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly “to the reporter.” The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.

Eighteen years later, Toensing is outraged that her own phone records were collected by the constitutionally appropriate authority in the investigation of multiple crimes.

A table of the April call records described in the report suggests the subpoena apparently targeted Lev Parnas — someone already indicted for crimes related to this investigation — and Rudy Giuliani — who’s a subject of that same investigation. (h/t Kelly for the table)

Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation).

Nunes, of course, has made several efforts in recent years to expand the government’s collection of metadata in national security investigations, which this is. Trump also has favored continued, aggressive use of metadata collection in national security contexts.

The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

One particularly delectable version of such complaints comes from Byron York. For some inconceivable reason, York decided to contact John Yoo — who, on multiple occasions in the year after Toensing wrote her column justifying a subpoena, wrote legal memos authorizing efforts to collect all phone records in the US with no legal process. York asked Yoo about whether subpoenaing AT&T for the phone records of two people as part of an impeachment investigation was proper.

John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.

For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).

That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.

York then quotes a policy from Reporters Committee for Freedom of the Press that shows this subpoena — which did not target Solomon — does not fall under RCFP’s stated concern for subpoenas used to find out a journalist’s sources.

Courts…have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.

The subpoena didn’t discover Solomon’s sources; it just demonstrated Parnas and Rudy’s outlets.

Most remarkable of all, York quotes Rudy providing direct evidence supporting impeachment.

Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment.

Here’s the thing. Either Rudy Giuliani was acting as a person the President appointed to pursue the foreign policy of the United States — something Republicans have, at times, argued in their attempts to defend the President.

Or, Rudy was acting as the President’s personal lawyer. Here, he asserts he was acting as the President’s lawyer. If that’s the case — and Rudy says it was — it confirms a key allegation made by Democrats: that Trump demanded concessions from Ukraine purely for his own personal benefit.

As Yoo notes, Rudy (and Jay Sekulow and Toensing) would not have an attorney-client claim over metadata in any case. But Rudy nevertheless claims Trump’s privilege has been implicated in these call records.

With that claim, he confirms that his client violated his oath of office.

Brett Kavanaugh Called John Yoo His “Magic Bullet”

And Bill Burck thinks American citizens should not know that fact before Kavanaugh gets a lifetime appointment.

Brett Kavanaugh Was In the Loop on (Broader) Precursor to John Yoo’s Stellar Wind Memos

Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails that Orrin Hatch staffer Manny Miranda stole from Democrats, including Leahy himself, in 2001 to 2003 during the period Kavanaugh worked at the White House, including on judicial nominations.

In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind, Bush’s illegal wiretap program. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.

But Leahy persisted, asking specifically about this document (see page 13; significantly, Steven Bradbury left the document off a FOIA Vaughn Index about documents pertaining to the “TSP”).

From the context of Leahy’s questions, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents. Leahy further made it clear that he couldn’t release the underlying documents making this clear because Chuck Grassley had deemed them Committee Confidential.

That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.

I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).

If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.

Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.

Update: This story from Charlie Savage makes it clear that Kavanaugh was emailing John Yoo about the precursor to the memos authorizing Stellar Wind.

[I]n September 2001, after the terrorist attacks, Judge Kavanaugh engaged with a Justice Department lawyer about questions of warrantless surveillance at the time that lawyer wrote a memo an inspector general report later portrayed as the precursor to the Bush administration’s warrantless surveillance program.

Update: The email reads:

Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

 

2011

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

I’v written a lot about the David Passaro case — the only one associated with the CIA (he was a contractor training Afghans) to be prosecuted for abuse. This post summarizes a lot of the problems with his case and its use to claim that the US ever held itself responsible for torture.

One Year After Collateral Murder Release, DOD’s Networks Are Still Glaring Security Problem

I’ve done a ton of posts on how the government complains about leaks even while it fails to close gaping security holes in its networks. This was one of the first. A day later I noted that DOD wasn’t aspiring to fix these problems until 2013; as it would turn out, Edward Snowden managed to download NSA’s crown jewels before they would fix them.

The Drone War on Westphalia

For Independence Day in 2011, I wrote a post arguing that the damage the use of drones will do to sovereignty will pose a real problem, particularly with regard to the consent of the governed. In a follow-up I argued against invoking “national security” to defend policies that weaken the nation.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

In the first of a bunch of posts on Adnan Farhan abd al Latif, I showed that the intelligence report on which his detention relied — which Judge Henry Kennedy had originally deemed unreliable — probably was used to detain a bunch of people turned over with bounties.

49% of Michigan’s African Americans to Lose Their Right to Self-Governance

As the country started focusing on MI’s disastrous policy of  emergency managers, I was the first to note the moment when half of Michigan’s African Americans lost their right to local self-governance.

2012

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

As part of an effort to justify drone-killing Anwar al-Awlaki, the government publicly blamed him for all of Umar Farouk Abdulmutallab’s attack on the US, blame which should have been shared with others in AQAP. This was the first post where I made that clear.

“The Gloves Come Off” Memorandum of Notification

I discovered that language the government was trying to keep classified in the ACLU torture FOIA was not (as ACLU mistakenly believed) a description about waterboarding, but instead an admission that torture was authorized by the September 17, 2001 Memorandum of Notification that authorized a bunch of other programs. This was a key post in a series of posts on the MON.

US Climate Inaction: Blame Dick Cheney

I believe the US invaded Iraq as part of a Cheney-backed decision to double down on our petroleum-based hegemonic position in the world, in the apparent belief that we can clean up the damage from climate change at some later time. Even our shift to fracking is more about power than the environment. Given how catastrophic the Iraq war was, and given everything that has occurred since — not least our singular abstention from the Paris Accord — I think it a particularly ironic choice.

Lanny Breuer Covers Up Material Support for Terrorism

I wrote a ton about Obama’s failure to prosecute the banks that blew up the world’s economy. One of the most important ones was the post where I laid out Lanny Breuer’s efforts to hide the fact that HSBC had materially supported al Qaeda. Of course, it got no more than a hand slap even as Pete Seda was in prison for closely related actions (Seda’s case ultimately blew up).

Other Key Post Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

Ninth Circuit Trims Executive’s Expansive Claims to Be Able Pixie Dust Executive Orders

As you’ve surely heard, the Ninth Circuit handed President Trump a huge loss last night, refusing to overturn the nationwide stay on his Muslim ban. The per curium opinion is particularly strong in asserting that courts do have the ability to review Presidential orders, even those that pertain to national security.

But there’s another part of the opinion I’m particularly interested in, because if it is not reversed, it creates a very important new limit on what the President can do with EOs.

One of the problems Trump created for himself was targeting Green Card holders — lawful permanent residents. That’s because LPRs have long term relations with the country and are accorded constitutional protections, both within and outside of the US. So long as LPRs remain affected by the EO, it will be legally problematic, at least as it pertains to them.

The Administration tried to undo that damage by having the White House Counsel, Don McGahn, write guidance on how to interpret the EO, basically stopping its application to LPRs. Within the hearing, the attorney representing the states noted that the Administration’s stance toward LPRs had changed about five times. But it was clear the judges were also unimpressed with changes the WHCO, as opposed to the President, made to an EO.

Here’s where they rule that a WHCO can’t just change an EO with policy guidance.

The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).

In short, they’re arguing that to make the EO legal with respect to LPRs, the President himself is going to have to change the EO, not McGahn.

As most longtime readers know, I’m obsessed by the way that John Yoo pixie dusted EO 12333 by basically saying the President doesn’t have to modify an EO he is blowing off, by blowing it off he is simply modifying it. In a 2001 opinion (and a 2002 letter to the FISC) he wrote,

[T]here is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it.

George Bush used that ruling to be able to disseminate Stellar Wind data even though his EO said you could not disseminate SIGINT.

While this ruling does not directly affect that interpretation, it does suggest that only a President can alter an EO (or, alternately, he must first confirm that someone else modifying it has been delegated the authority to do so). So while it doesn’t entirely shut down the possibility of further pixie dusting, it does make such things harder. It does give people reason to challenge any such changes to an EO.

As I noted the other day, I don’t think John Yoo was so much complaining about Trump’s abuses, as complaining that the way he implemented his abuses might do permanent damage to claims of expansive Executive authority. Let’s hope Trump has already done so by refusing to formally alter an EO his WHCO recognized was vulnerable to legal challenge.

John Yoo Wishes Trump Abused Executive Authority More Effectively

At the end of a John Yoo critique of Donald Trump’s abuses that a lot of people are mis-reading, he says this:

A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power. He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.

Otherwise, our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.

John Yoo is not stating that, across the board, Trump has overstepped his authority. Indeed, the areas where Yoo suggests Trump has or will overstep his authority — exiting NAFTA and building a wall — are things Trump has not yet put into place. His concern is prospective. The only thing Trump has already done that Yoo believes abused power was firing Sally Yates, and that because of his explanation for firing her.

Even though the constitutional text is silent on the issue, long historical practice and Supreme Court precedent have recognized a presidential power of removal. Mr. Trump was thus on solid footing, because attorneys general have a duty to defend laws and executive orders, so long as they have a plausible legal grounding. But the White House undermined its valid use of the removal power by accusing Ms. Yates of being “weak on borders and very weak on illegal immigration.” Such irrelevant ad hominem accusations suggest a misconception of the president’s authority of removal.

Yoo doesn’t, for example, complain about Trump’s Executive Order on Dodd-Frank, which may have little effect.

But what Yoo is worried about is not abuse, per se, but that Trump will “waste the executive’s powers.”

That’s important given Yoo’s critique of Trump’s Muslim ban.

Immigration has driven Mr. Trump even deeper into the constitutional thickets. Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law. But after the order was issued, his adviser Rudolph Giuliani disclosed that Mr. Trump had initially asked for “a Muslim ban,” which would most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion, or both — no mean feat. Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.

Yoo is saying that Trump could have implemented this policy if only he had gotten better advice about how to hide the fact that it was a Muslim ban, in the same way firing Yates would have been fine had Trump offered another explanation for it.

There’s a big rush among those who’ve abused executive authority in the past to rehabilitate themselves by seeming to criticize Trump. Many of them — including Yoo — are mostly complaining that Trump’s bad execution of abuse of executive power might give it a bad name.

 

The Ironies of the EO 12333 Sharing Expansion for Obama and Trump

In one of his first acts as leader of the Democratic party in 2008, Barack Obama flipped his position on telecom immunity under FISA Amendments Act, which cleared the way for its passage. That was a key step in the legalization of the Stellar Wind dragnet illegally launched by George Bush in 2001, the normalization of turnkey surveillance of the rest of the world, surveillance that has also exposed countless Americans to warrantless surveillance.

Bookends of the Constitutional law president’s tenure: codifying and expanding Stellar Wind

So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

I’ve was at a privacy conference in Europe this week (which is my partial explanation for being AWOL all week), and no one there, American or European, could understand why the Obama Administration would give Trump such powerful tools.

About the only one who has tried to explain it is former NSA lawyer Susan Hennessey in this Atlantic interview.

12333 is not constrained by statute; it’s constrained by executive order. In theory, a president could change an executive order—that’s within his constitutional power. It’s not as easy as just a pen stroke, but it’s theoretically possible.

[snip]

When they were in rewrites, they were sort of vulnerable. There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections—or at the very least did not reduce them—that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

[snip]

I think the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.

Hennessey’s assurances ring hollow. That’s true, first of all, because it is actually easier to change an EO — and EO 12333 specifically — than “a pen stroke.” We know that because John Yoo did just that, in authorizing Stellar Wind, when he eliminated restrictions on SIGINT sharing without amending EO 12333 at all. “An executive order cannot limit a President,” Yoo wrote in the 2001 memo authorizing Stellar Wind. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” And so it was that the NSA shared Stellar Wind data with CIA, in violation of the plain language of EO 12333 Section 2.3, until that sharing was constrained in 2004.

Yes, in 2008, the Bush Administration finally changed the language of 2.3 to reflect the SIGINT sharing it had started to resume in 2007-2008. Yes, this year the Obama Administration finally made public these guidelines that govern that sharing. But recent history shows that no one should take comfort that EOs can bind a president. They cannot. The Executive has never formally retracted that part of the 2001 opinion, which in any case relies on a 1986 OLC opinion on Iran-Contra arguing largely the same thing.

No statutorily independent oversight over vastly expanded information sharing

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

Obama vastly expanded information sharing with these procedures without implementing the most obvious and necessary oversight over that sharing, statutorily independent oversight.

Limits on using the dragnet to affect political processes

There is just one limit in the new procedures that I think will have any effect whatsoever — but I think Trump may have already moved to undercut it.

The procedures explicitly prohibit what everyone should be terrified about under Trump — that he’ll use this dragnet to persecute his political enemies. Here’s that that prohibition looks like.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

If you need to say the IC should not share data with the White House for purposes of affecting the political process, maybe your info sharing procedures are too dangerous?

Anyway, among the long list of things the IC is not supposed to do, this is the only one that I think is so clear that it would likely elicit leaks if it were violated (though obviously that sharing would have to be discovered by someone inclined to leak).

All that said, note who is in charge of determining whether something constitutes affecting political processes? The IC agency’s and ODNI’s General Counsel (the latter position is vacant right now). Given that the Director of National Intelligence is one of the positions that just got excluded from de facto participation in Trump’s National Security Council (in any case, Republican Senator Dan Coats has been picked for that position, which isn’t exactly someone you can trust to protect Democratic or even democratic interests), it would be fairly easy to hide even more significant persecution of political opponents.

FBI and CIA’s expanded access to Russian counterintelligence information

There is, however, one aspect of these sharing guidelines that may have work to limit Trump’s power.

In the procedures, the conditions on page 7 and 8 under which an American can be spied on under EO 12333 are partially redacted. But the language on page 11 (and in some other parallel regulations) make it clear one purpose under which such surveillance would be acceptable, as in this passage.

Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:

When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;

Under these procedures generally, communications between an American and a foreigner can be read. But communications between Americans must be destroyed except if there is significant foreign intelligence or counterintelligence focus. This EO 12333 sharing will be used not just to spy on foreigners, but also to identify counterintelligence threats (which would presumably include leaks but especially would focus on Americans serving as spies for foreign governments) within the US.

Understand: On January 3, 2017, amid heated discussions of the Russian hack of the DNC and public reporting that at least four of Trump’s close associates may have had inappropriate conversations with Russia, conversations that may be inaccessible under FISA’s probable cause standard, Loretta Lynch signed an order permitting the bulk sharing of data to (in part) find counterintelligence threats in the US.

This makes at least five years of information collected on Russian targets available, with few limits, to both the CIA and FBI. So long as the CIA or FBI were to tell DIRNSA or NSA’s OGC they were doing so, they could even keep conversations between Americans identified “incidentally” in this data.

I still don’t think giving the CIA and FBI (and 14 other agencies) access to NSA’s bulk SIGINT data with so little oversight is prudent.

But one of the only beneficial aspects of such sharing might be if, before Trump inevitably uses bulk SIGINT data to persecute his political enemies, CIA and FBI use such bulk data to chase down any Russian spies that may have had a role in defeating Hillary Clinton.

False Reassurances: On Pixie Dusted Executive Orders, Appendix M, and Proxy Detention and Torture

In the wake of Trump’s victory, a number of people have offered some thoughts intended to reassure. In a piece titled, “The United States is not about to spiral into tyranny,” Kevin Drum claimed — among other things — that Trump will have a hard time reversing Obama’s Executive Orders.

Trump will learn that repealing executive orders is harder than he thinks, and it’s unlikely he has the attention span to really keep at it.

And a number of pieces — such as this one from Reuters — point to last year’s language in the NDAA limiting interrogation to techniques that appear in the Army Field Manual.

Trump’s support for water-boarding, an interrogation technique that simulates drowning, also would meet opposition. Congress last year passed legislation barring the use of waterboarding and other “extreme interrogation techniques” widely considered torture. Obama signed the measure into law last November.

Both of those reassurances are overly optimistic.

Pixie Dusting EOs

Even on its face, the idea that Trump can’t reverse Obama’s EOs doesn’t make sense. A president has uncontested authority to pass EOs as he pleases. The only limit on that power is Congress. If sufficient numbers in Congress, backed by sufficiently powerful leaders in Congress, want to contest a president’s public EOs, they can try to legislate or defund an activity.

There is no likelihood of that happening with Trump anytime soon. None. Especially not with the EO that Trump is probably most anxious to reverse, Obama’s order deferring deportation of 5 million people who’ve long been valuable members of American society.

More importantly — and this is something everyone needs to start accounting for — according to two different OLC memos, one used to authorize Iran-Contra, the other used to authorize Stellar Wind, the president doesn’t even have to make the actual implementation of his EOs public.

An executive order is only the expression of the President’s exercise of his inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive’s Article II authority. Further, there is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: Legal Authority for Recent Covert Arms Transfers to Iran (Dec. 17, 1986). In doing so, he need not issue a new executive order, rescind the previous order, or even make his waiver or suspension of the order publicly known. Thus, here, the October 4, 2001 Authorization, even if in tension with Executive Order 12,333, only represents a one-time modification or waiver of the executive order, rather than a “violation” that is in some way illegal.

While Jack Goldsmith’s May 6, 2004 Stellar Wind memo supplanted the Yoo memo in which he made this argument, there has been no public repudiation of this logic or the underlying Iran-Contra memo, not by Constitutional scholar Barack Obama, not by Congress.

In other words, no one has invented any kind of requirement that the president let the public or even Congress know what rules he believes he is bound by.  Indeed, it’s absurd to think Obama would have institutionalized something like that, given that (according to CIA General Counsel Caroline Krass) his administration has started hiding its self-authorizations in places besides OLC so we won’t know where to look for them.

Which means a man who used disinformation to get elected has no obligation to tell us what rules he considers himself bound by.

Three shell games that already exist under which to conduct torture

Similarly, the NDAA prohibition on torture is less ironclad than often claimed. That amendment didn’t prohibit torture. Rather, it restricted national security interrogators to the techniques in the Army Field Manual.

The amendment explicitly excluded law enforcement personnel from this restriction. As John Brennan said when he was asked about this way back in 2013, the FBI has its own processes and procedures, many of which remain obscure, others of which include clear loopholes. Importantly, the FBI increasingly operates — as the DEA has long done — overseas, where any problematic processes and procedures can easily be hidden.

In addition, as Jeff Kaye pointed out at the time, the AFM includes a section called Appendix M, which permits the use of a technique called Separation. The UN Committee Against Torture found Appendix M problematic, because it induced psychosis, during the UN review of US practices back in 2014.

But there’s another problem with the AFM. In 2006, Steven Bradbury wrote an OLC memo that basically authorized Appendix M largely divorced from the actual details of it. As I read it, that memo may be used for authorization of techniques used in Appendix M even if they’re not enumerated in the memo, meaning Trump can put anything in Appendix M and claim to have OLC buy-off. In fact, Bradbury incorporated within that memo yearly updates to the Appendix. It basically created a drawer, which might or might not be classified, into which DOD could throw whatever it wants to do.

When Congress passed the NDAA, they required the Appendix M to be reviewed to make sure it is humane and legal — but not until 2017. So while the intent of this amendment was explicitly to prohibit inhumane treatment, it relies on a structure of interpretations left up to the future President. The future President, as it turns out, got elected insisting that waterboarding is not torture.

Finally, the Drone Rule Book (which Trump can throw out on January 20 in any case) explicitly envisions letting our friends detain people, so long as they give us reassurances the person will be treated humanely. The Bush Administration started waterboarding people by watching while Egyptians did the waterboarding for us. It asked Bashar al-Assad (and a number of other countries we still are friends with) do far worse to people on our behalf. There has never been any appetite to eliminate the shell game of proxy detention. Indeed, Obama has used such shell games in Somalia and Kuwait, with tortured alleged in the latter case.

The CIA has been leaking wildly about its concerns about being asked to torture. But the CIA — and its enablers — didn’t do the things to make it impossible to ask them to torture when we had the chance.

The Yahoo Scans Closely Followed Obama’s Cybersecurity Emergency Declaration

Reuters has a huge scoop revealing that, in spring of 2015, Yahoo was asked and agreed to perform scans for certain selectors on all the incoming email to its users.

The company complied with a classified U.S. government directive, scanning hundreds of millions of Yahoo Mail accounts at the behest of the National Security Agency or FBI, said two former employees and a third person apprised of the events.

[snip]

It is not known what information intelligence officials were looking for, only that they wanted Yahoo to search for a set of characters. That could mean a phrase in an email or an attachment, said the sources, who did not want to be identified.

The timing of this is particularly interesting. We know that it happened sometime in the weeks leading up to May 2015, because after Alex Stamos’ security team found the code enabling the scan, he quit and moved to Facebook.

According to the two former employees, Yahoo Chief Executive Marissa Mayer’s decision to obey the directive roiled some senior executives and led to the June 2015 departure of Chief Information Security Officer Alex Stamos, who now holds the top security job at Facebook Inc.

[snip]

The sources said the program was discovered by Yahoo’s security team in May 2015, within weeks of its installation. The security team initially thought hackers had broken in.

When Stamos found out that Mayer had authorized the program, he resigned as chief information security officer and told his subordinates that he had been left out of a decision that hurt users’ security, the sources said. Due to a programming flaw, he told them hackers could have accessed the stored emails.

That would date the directive to sometime around the time, on April 1, 2015, that Obama issued an Executive Order declaring cyberattacks launched by persons located outside the US a national emergency.

I, BARACK OBAMA, President of the United States of America,find that the increasing prevalence and severity of malicious cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside theUnited States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of theUnited States. I hereby declare a national emergency to deal with this threat.

On paper, this shouldn’t create any authority to expand surveillance. Except that we know FISC did permit President Bush to expand surveillance — by eliminating the wall between intelligence and criminal investigations — after he issued his September 14, 2001 9/11 emergency declaration, before Congress authorized that expansion. And we know that Jack Goldsmith focused on that same emergency declaration in his May 2004 OLC opinion reauthorizing Stellar Wind.

Indeed, just days after Obama issued that April 2015 EO, I wrote this:

Ranking House Intelligence Member Adam Schiff’s comment that Obama’s EO is “a necessary part of responding to the proliferation of dangerous and economically devastating cyber attacks facing the United States,” but that it will be “coupled with cyber legislation moving forward in both houses of Congress” only adds to my alarm (particularly given Schiff’s parallel interest in giving Obama soft cover for his ISIL AUMF while having Congress still involved).  It sets up the same structure we saw with Stellar Wind, where the President declares an Emergency and only a month or so later gets sanction for and legislative authorization for actions taken in the name of that emergency.

And we know FISC has been amenable to that formula in the past.

We don’t know that the President has just rolled out a massive new surveillance program in the name of a cybersecurity Emergency (rooted in a hack of a serially negligent subsidiary of a foreign company, Sony Pictures, and a server JP Morgan Chase forgot to update).

We just know the Executive has broadly expanded surveillance, in secret, in the past and has never repudiated its authority to do so in the future based on the invocation of an Emergency (I think it likely that pre FISA Amendments Act authorization for the electronic surveillance of weapons proliferators, even including a likely proliferator certification under Protect America Act, similarly relied on Emergency Proclamations tied to all such sanctions).

I’m worried about the Cyber Intelligence Sharing Act, the Senate version of the bill that Schiff is championing. But I’m just as worried about surveillance done by the executive prior to and not bound by such laws.

Because it has happened in the past.

I have reason to believe the use of emergency declarations to authorize surveillance extends beyond the few data points I lay out in this post. Which is why I find it very interesting that the Yahoo request lines up so neatly with Obama’s cyber declaration.

I’m also mindful of Ron Wyden’s repeated concerns about the 2003 John Yoo common commercial services opinion that may be tied to Stellar Wind but that, Wyden has always made clear, has some application for cybersecurity. DOJ has already confirmed that some agencies have relied on that opinion.

In other words, this request may not just be outrageous because it means Yahoo is scanning all of its customers incoming emails. But it may also be (or have been authorized by) some means other than FISA.

What Price Victory?

Virtually the entire political class has now united to defeat Donald Trump, with Morning Joe today staging a Michael Hayden appearance that served largely to allow Scarborough to tell the story of Trump asking three times in a foreign policy briefing why the US couldn’t use its nukes. As Dan Drezner pointed out on Twitter, Scarborough says the event happened months ago — when the primary was still going on — but has just now staged its telling.

Beating Donald Trump is important. He’s a racist who aims to win by promising white working class people they can resume persecuting people of color again, and he is dangerously inconsistent. That said, he does want to spend lots on infrastructure and protect workers from the ravages of globalization, something often forgotten in depictions of him as entirely policy free.

But the transpartisan obsession with beating Trump has largely applauded two developments that, for liberals, for democrats, for those who believe in peace, for progressives, should be a worry.

First, the Neocon establishment has come out in enthusiastic support for Clinton, with ideologue Eliot Cohen orchestrating serial efforts (one that even includes John Yoo!!) to oppose Trump. They point to Trump’s erratic nature and more recently the theories of Putin’s influence. They do so even in the face of a report that Paul Manafort, through whom any Putin influence would be managed, is checking out.

I exchanged messages Tuesday evening with a longtime ally of Trump campaign manager Paul Manafort, whom I asked about who was calling the shots in the campaign. The response indicated that Manafort, a veteran of Republican politics brought in this spring for the transition from primaries to the general election, has lost control over his candidate.

“Manafort not challenging (Trump) anymore,” Manafort’s ally wrote. “Mailing it in. Staff suicidal.”

I’m getting whiplash following the Manchurian Trump stories. Maybe the ones suggesting Bill Clinton was behind the Trump run are the true ones after all.

And even while the focus has been on Russia’s alleged influence with Trump, there has been no focus on Hillary’s unquestioning support of Saudi Arabia (the country that had ties to 9/11) and Israel. Or on Hillary’s equally troubling policy proposals, such as starting a No Fly Zone over Russian planes.  As Will Bunch noted in a great column, Democrats have become the party that shuns people who chant No More War.

The delegates didn’t hear from an Andrew Bacevich or the equivalent of James Madison, but they did get Panetta, who — as noted in this excellent analysis — has supported expanded war powers for the White House, failed to push for real accountability on Bush-era torture, and once suggested that “a 30-year war” will be needed against terrorism. Was it really rude for some of the DNC delegates to chant “no more war!” during Panetta’s speech? Or were some citizens desperately trying to be heard with a different point of view, in a nation so eager to squelch any public debate?

It should be a scandal that the United States drops bombs from flying death robots or our obscenely expensive military jets over countries like Libya, swaths of Africa, or Syria based only on a 15-year-old congressional resolution passed after an attack carried out mostly by Saudi Arabians loyal to a terrorist group that barely exists in 2016. But we’re afraid of any frank discussion of that, or the recent admission by the Obama administration that U.S. military actions in nations with which we’re not technically at war have killed 116 innocent civilians. That’s a number that experts find ridiculously low, by the way, and doesn’t as include as many as 85 Syrian civilians who were killed in late July by a U.S. airstrike — a story that was all but ignored in the media. Even if you strongly believe that such collateral damage is necessary to defeat international terrorism, chanting “USA! USA!” to support militarism is both jingoistic and crudely callous toward the dead.

Not only has Hillary gotten the support of the people who brought us into Iraq based on a lie (she told her own little stretchers to get us into Libya), but we’re now drowning out any voice for peace.

Then there’s the parade of heinous billionaires Hillary has rolled out, with Mark Cuban, Mike Bloomberg, and now Meg Whitman. NYT’s coverage of Whitman’s announcement emphasizes that Hillary has been courting Republican billionaires since before she finalized the nomination and that Hillary’s pick of the pro-TPP pro-Wall Street Tim Kaine is what sealed the deal for Whitman.

Whitman, who said she would remain a Republican, brings with her a considerable network of contributors, some of whom she said were open to giving to Mrs. Clinton. She said she was willing to campaign for Mrs. Clinton, said she would do her best to gather checks for her campaign and indicated she would personally give to both Mrs. Clinton and her affiliated “super PACs.” An aide to Ms. Whitman said she would personally give at least an amount in the “mid-six figures” to the Clinton effort.

While Democrats openly appealed at their convention last week to Republicans uneasy with Mr. Trump, Mrs. Clinton and her top supporters have been making a similar cross-party pitch in private since before the Democratic nomination fight even came to its conclusion.

[snip]

She said she had told Mrs. Clinton that she wanted to see the two parties’ conventions and assess the running mates that each nominee chose before making her decision. When Mrs. Clinton selected Senator Tim Kaine of Virginia, a consensus-oriented figure, “that was a positive for me,” Ms. Whitman said.

Whitman’s nod to Kaine is of particular concern to me, as Democrats downplayed his anti-choice and pro-business policies, at least in public, until after the convention. Now, if anything happens to Hillary (who has some dangerously unhinged enemies), we’ll basically have a moderate Republican running the country.

It’s not just that Hillary has secretly been courting oligarchs since before she cemented the nomination. It’s that her post-convention politicking has focused on it, as if the approval of oligarchs is what it will take to win in midwest swing states.

The guy who will likely become Majority Leader is even more aggressively pursuing typical Republican voters (though this view — admittedly filtered through the potentially inaccurate National Review — has some huge logical contradictions, not to mention an odd idea of what it would take for Democrats to continue to win Illinois).

“No guarantees, there never are, but the odds are more like than not that we will take back the Senate,” Sen. Chuck Schumer said at a forum sponsored by the Washington Post Thursday afternoon. Schumer will be the next majority or minority leader of the Senate Democrats, depending upon how November unfolds. He suggested that the electorate’s sense of economic gloom was actually working to his party’s advantage: “The electorate is moving in a more Democratic direction. When middle class incomes decline, people tend to move in a more progressive direction.”

Schumer’s optimism is driven more by national demographics than by the specific traits of his candidates. He contends that Millennials, or voters aged 18 to 35, will be the largest age group voting in this year’s electorate, even if they don’t turn out in massive numbers.

“The number one factor in whether we retake the Senate is whether Hillary Clinton does well, and I think she’s going to do really well,” Schumer says of his former fellow New York senator. He notes that Senate Majority Leader Mitch McConnell urged Senate Republicans in difficult races to localize their elections, rather than get too tied to Trump’s positions and comments and scoffs, “Sorry, Mitch, this is a national election if there ever was one.”

At least publicly, Schumer has no worries about his party’s dwindling fortunes among working-class white voters. “For every blue-collar Democrat we lose in western Pennsylvania, we will pick up two moderate Republicans in the suburbs in Philadelphia, and you can repeat that in Ohio and Illinois and Wisconsin.”

Democrats, it appears, want to become the party of the Republican soccer mom, which may work well with the bellicose warmongering, but which seems to view economic malaise as an opportunity rather than a problem.

So yeah, by all means, let’s beat the orange crazy man.

But let’s also be cognizant of the more politically palatable craziness that gets embraced in the process.