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.
Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).
The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.
Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.
Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.
That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.
Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.
First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.
Boy how wrong was I. Boy how inadequately cynical was I.
Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.
Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:
It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.
Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?
In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.
On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.
Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.
Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.
By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.
If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.
Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.
I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).
A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.
The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.
I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.
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.
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.
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.
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.
On September 14, 2001 — 3 days before signing an expansive Memorandum of Notification that would authorize a suite of covert operations against al Qaeda, and 4 days before signing an AUMF that would give those operations the appearance of Congressional sanction — President Bush declared a National Emergency in response to the 9/11 attack.
The following day, according to a 2002 motion to the FISC to be able to share raw FISA-derived information with CIA and NSA (this was liberated by Charlie Savage), FISC suspended its rules on sharing intelligence derived under FBI-obtained FISA warrants with criminal investigations (see page 26 of this paper for background).
On September 15, 2001, upon motion of the Government, the [FISA] Court suspended the “Court wall,” certification, and caveat requirements that previously had applied to Court-authorized electronic surveillance and physical search of [redacted] related targets, while directing that the FBI continue to apply the standard minimization procedures applicable in each case. As stated in the order resulting from that motion, the Court took this action in light of inter alia:
“the President’s September 14, 2001, declaration of a national emergency and the near war conditions that currently exist;”
“the personal meeting the Court had with the Director of the FBI on September 12, 2001, in which he assured the Court of the collection authority requested from this Court in the face of the nature and scope of the multi-faced response of the United States to the above-referenced attacks;
“the need for the Government to rapidly disseminate pertinent foreign intelligence information to appropriate authorities.”
Ten days after FISC dismantled its role in “the wall” between intelligence and criminal investigations in response to the Executive’s invocation of a National Emergency, on September 25, 2001, John Yoo finished an OLC memo considering the constitutionality of dismantling the wall by replacing “the purpose” in FISA orders with “a purpose.”
A full month later, on October 25, 2001, Congress passed the PATRIOT Act. For over 13 years, analysis of the PATRIOT Act has explained that it eliminated “the wall” between intelligence and criminal investigations by replacing language requiring foreign intelligence be “the purpose” of FISA wiretaps with language requiring only that that be “a significant purpose” of the wiretap. But the FISC suspension had already removed the biggest legal barrier to eliminating that wall.
In other words, the story we’ve been telling about “the wall” for over 13 years is partly wrong. The PATRIOT Act didn’t eliminate “the wall.” “The wall” had already been suspended, by dint of Executive Proclamation and a secret application with the FISC, over a month before the PATRIOT Act was initially introduced as a bill.
FISC suspended it, without congressional sanction, based on the President’s invocation of a National Emergency.
That’s not the only case where the Executive invoked that National Emergency in self-authorizing or getting FISC to authorize expansive new surveillance authorities (or has hidden the authorities under which it makes such claims).
Perhaps most illustratively, on May 6, 2004, Jack Goldsmith pointed to the National Emergency when he reauthorized most aspects of Stellar Wind.
On September 14, 2001. the President declared a national emergency “by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” Proclamation No. 7463, 66 Fed. Reg. 43, !99 (Sept. 14, 2001). The United States also launched a massive military response, both at home and abroad. In the United States, combat air patrols were immediately established over major metropolitan areas and were maintained 24 hours a day until April 2002, The United States also immediately began plans for a military response directed at al Qaeda’s base of operations in Afghanistan.
Only after invoking both the Proclamation and the immediate military response that resulted did Goldsmith note that Congress supported such a move (note, he cited Congress’ September 14 passage of the AUMF, not Bush signing it into law on September 18, thought that may be in part because Michael Hayden authorized the first expansions of surveillance September 14; also remember there are several John Yoo memos that remain hidden) and then point to an article on the friendly-fire death of Pat Tillman as proof that combat operations continued.
On September 14, 2001, both houses of Congress passed a joint resolution authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September I I. Congressional Authorization § 2(a). Congress also expressly acknowledged that the attacks rendered it “necessary and appropriate” for the United States to exercise its right “to protect United States citizens both at home and abroad,” and acknowledged in particular that the “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” id. pmbl. Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See, e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at AI (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remains of the Taliban and al Qaeda”).
That is, even in an OLC memo relying on the AUMF to provide legal sanction for President Bush’s systematic flouting of FISA for 2.5 years, Goldsmith relied primarily on the National Emergency Proclamation, and only secondarily on Congress’ sanction of such invocation with the AUMF.
The White Paper released in 2006 largely regurgitating Goldsmith’s opinion for more palatable consumption mentions the AUMF first in its summary, but then repeats Goldsmith’s emphasis on the Proclamation in the background section (see pages 2 and 4).
Paragraphs that may discuss such authorizations get redacted in the 2006 application to move content collection under FISC (see page 6). The entire background section (starting at page 5) of the initial Internet dragnet application is also redacted. While we can’t be sure, given parallel claims made in the same 2004 to 2006 period, it seems likely those memoranda also repeated this formula.
Such a formula was definitely dropped. The 2006 memorandum in support of using Section 215 to create a phone dragnet included no mention of authorities. The 2007 memorandum to compel Yahoo to fulfill Protect American Act orders cites PAA, not Emergency Declarations.
But the formula was retained in all discussions of the Administration’s illegal wiretap program in secret declarations submitted in court in 2006, 2007, and 2009, being repeated again in an unclassified 2013 declaration. While these declarations likely all derive, at least in part, from Goldsmith’s memo, it’s worth noting that the government has consistently suggested it could conduct significant surveillance programs without Congressional sanction by pointing to the that National Emergency Proclamation.
This is the precedent I meant to invoke when I expressed concern about President Obama’s expansive Executive Order of the other day, declaring a National Emergency because of cybersecurity.
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.
Update: In his October 23, 2001 OLC memo authorizing the President to suspend the Fourth Amendment (and with it the First), John Yoo said this but did not invoke the September 14, 2001 proclamation per se.
As applied to the present circumstances, the [War Powers Resolution] signifies Congress’ recognition that the President’s constitutional authority alone enables him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them, if such actions are, in his judgment, a necessary and appropriate response to the national emergency created by those incidents.
Update: Thanks to Allen and Joanne Leon for the suspend/suspect correction.
In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.
Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).
I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.
All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.
On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).
Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.
But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.
Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.
When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)
The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.
So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.
Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.
But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).
Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.
David Cole persists in reading some selected documents in isolation from a far more extensive record and patting himself on the back that he has discovered what many of us have been saying for years: that some in the White House were also responsible for torture. But along the way he entirely misses the point.
I will return to the documents that have so entranced Cole at a later time (several other issues are more pressing right now). But for now, here are some significant problems with his latest.
Cole once again presents the CIA Saved Lives site as some mysterious cache, in spite of the fairly clear genealogy and the WSJ op-ed signed by a bunch of people who managed torture introducing it.
The documents, which were uploaded to a mysterious website by the name of ciasavedlives.com, provide dramatic new details about the direct involvement of senior Bush administration officials in the CIA’s wrongs.
It’s as if Cole has never heard of PR and therefore absolves himself of presenting this as a fourth self-interested viewpoint, that of those who managed the torture — the other three being SSCI Dems plus McCain, SSCI Republicans, and official CIA — which doesn’t even encapsulate all the viewpoints that have been or should be represented in a complete understanding of the program.
And so Cole accepts that the narrative presented here is a transparent portrayal of the truth of the torture program rather than — just like the SSCI report, the CIA response, the CIA IG Report, the SASC Report, and the OPR Report — one narrative reflecting a viewpoint.
As a result, some of the conclusions Cole draws are just silly.
Back when his new CIA-friendly opinion was in its early stages at the NYT, Cole accepted as a fair critique (as do I) that Abu Zubaydah’s torture started well before the SSCI report considered, in April with his extreme sleep deprivation and not August when the waterboarding program started (if we can believe CIA records).
The committee contended that the most useful information from Mr. Zubaydah actually came while the F.B.I. was questioning him, using noncoercive tactics before he was waterboarded. But the C.I.A. points out that Mr. Zubaydah had been subjected to five days of sleep deprivation, a highly coercive and painful tactic, when the F.B.I. interrogated him.
I’d actually say — and Cole should, given that elsewhere in his NYT piece he admits we should also look at the torture done in foreign custody — that the timeline needs to come back still further, to Ibn Sheikh al-Libi’s torture in January and February 2002, using the very same techniques that would be used with Abu Zubaydah, in Egyptian custody but with CIA officers present (and, importantly, authorized by the same Presidential finding). But once you do that, Cole’s depiction of the original approval process for the program becomes nonsensical.
Even though the program had been approved at its outset by National Security Adviser Condoleezza Rice in July 2002 and by Attorney General John Ashcroft in August 2002,
Of course, all that points back to a place that Cole so studiously avoids it’s hard to imagine it’s not willful, to the September 17, 2001 Memorandum of Notification that CIA and SSCI both agree (though the CIAsavedlives leaves out) authorized this program. (President Obama also went to some length to hide it from 2009 to 2012, when he was busy using it to kill Anwar al-Awlaki.)
Condi didn’t give primary approval for this (and the record is not as clear as Cole claims in any case). President Bush did, months earlier, well before the February 7, 2002 date where CIAsavedlives starts its narrative. And that’s the detail from which the momentum endorsing torture builds (and the one that a Constitutional law professor like Cole might have far more productive input on than details that he appears to be unfamiliar with).
I’m not trying to protect Condi here — I believe I once lost a position I very much wanted because I hammered her role in torture when others didn’t. But I care about the facts, and there is no evidence I know (and plenty of evidence to the contrary) to believe that torture started with Condi (there is plenty of reason to believe CIA would like to implicate Condi, however).
Cole goes onto rehearse the three times CIA got White House officials to reauthorize torture, two of which were reported years and years ago (including some limited document releases) but which he seems to have newly discovered. In doing so, he simply takes these documents from the CIA — which has been shown to have manipulated documents about briefings in just about every case — on faith.
Dan Froomkin pointed out some of the problems with the documents — something which Cole has already thrown up his hands in helplessness to adjudicate.
The new documents don’t actually refute any of the Senate report’s conclusions — in fact, they include some whopper-filled slides that CIA officials showed at the White House.
But the slides also contained precisely the kind of statements that the Senate report showed were inaccurate:
While it doesn’t excuse White House actions, the CIA demonstrably lied about the efficacy of the program. It’s not that the White House was being told they were approving a torture program that had proven counterproductive. They were told, falsely, they were approving a program that was the one thing that could prevent another attack and that it had already saved lives. That is, the people approving the torture were weighing American lives against respecting Khalid Sheikh Mohammed’s human rights, based on inaccurate information. And note — as the image above shows — the torture managers aren’t revealing what implicit threats they made if Bush’s aides didn’t reapprove torture (though elsewhere they make it clear they said ending torture might cause “extensive” loss of life), which is significant given that the next year they claimed they had to torture to prevent election year plotting that turned out to be based partly on a fabrication.
Those aren’t the only known lies in the documents. Take the record of the July 29, 2003 briefing and accompanying slides. Among the whoppers — even according to CIA’s own documents! — that appear are:
The fact that the CIA misrepresented how many times both Abu Zubaydah and Khalid Sheikh Mohammed had been waterboarded is significant, because that’s also related to the dispute about whether Muller’s account of the meeting was accurate. According to John Ashcroft, Muller misrepresented his comments to mean that CIA could waterboard more than had been approved in the Techniques memo, whereas what he really said is that CIA could use the techniques approved in that memo with other detainees. This does not mean — contrary to Cole’s absurd insinuation — that “Ashcroft is my hero.” It means there is a public dispute on this issue. Cole has gone from refusing to adjudicate disputes to simply taking CIA’s word on faith, in spite of the well-documented problems — even based entirely on CIA’s own documents — with their own accounts of briefings they gave.
Note, too, that whether the Abu Zubaydah memo could be used with other detainees was being discussed in 2003, when even by CIA’s count it had already subjected 13 more detainees to torture, is itself telling.
Finally, the Legal Principles are worth special note. They were, per the CIA IG Report, the OPR Report, and declassified documents, one key tension behind this July 29, 2003 briefing. As the record shows, DOJ permitted CIA’s IG to develop the agency’s own fact set about the violations that had occurred by January 2003 to determine whether doing things like mock execution with Abd al Rahim al-Nashiri and killing Gul Rahman were crimes. So CIA set about writing up its own summary of Legal Principles DOJ had given it — it claimed to John Helgerson — with the help of John Yoo and Jennifer Koester (but not, at least according to Jack Goldsmith, the involvement of Jay Bybee or the review of other OLC lawyers, which would be consistent with other facts we know as well as Bybee’s sworn testimony to Congress). That is, CIA was basically writing its own law on torture via back channel to OLC. The record shows that on several occasions, CIA delivered those documents as a fait accompli, only to have DOJ lawyers object to either some provisions or the documents as a whole. The record also shows that CIA used the memos to expand on authorized techniques (something the DOD torture memo process in 2003 also did) to include some of the ones they had used but hadn’t been formally approved by DOJ. That is, one tension underlying this meeting that Cole doesn’t discuss is that some in DOJ were already trying to limit CIA’s own claims to authorization, which devolved in part to a debate over whether bureaucratic manipulation counts as approval.
I raise all this because it gets at the underlying tension, one which, I suspect, created a kind of momentum that doesn’t excuse those involved but probably explains it. Very early after 9/11, certain people at CIA and in the White House decided to affirmatively torture. Torture started — and the Iraq War was justified — early, long before Cole presents. But at each step, that momentum — that need to, at a minimum, protect not only those who had acted on the President’s orders but also the President himself — kept it going such that by 2004, CIA had an incentive to torture Janat Gul just for the sake of having an excuse to torture again (and having an excuse to get Jay Rockefeller to buy off on torture for what appears to have been the first time).
It’s that very same momentum — the need to protect those who tortured pursuant to a President’s order, as well as the office of the presidency itself — that prevents us from holding anyone accountable for torture now. Because ultimately it all comes down to the mutual embrace of complicity between the President and the CIA. That’s why we can’t move beyond torture and also why we can’t prevent it from happening again.
Cole and I agree that there are no heroes in the main part of the narrative (though there were people who deserve credit for slowing the momentum, and outside this main part of the narrative, there were, indeed, heroes, people who refused to participate in the torture who almost always paid a price). What he is absolutely incorrect about, given the public record he is apparently only now discovering, is that CIA did manipulate some in the White House and DOJ and Congress, to cover their ass. I don’t blame them, They had been ordered to torture by the President, and had good reason not to want to be left holding the bag, and as a result they engaged in serial fraud and by the end, crimes, to cover their collective asses. But the evidence is, contrary to Cole’s newly learned helplessness to investigate these issues, that CIA lied, not only lied but kept torturing to protect their earlier torture.
All that said, Cole’s intervention now is not only laughably credulous to the CIA. But it also is not the best use to which he could put his soapbox if his goal is to stop torture rather than do CIA’s bidding.
First, we actually have no idea what went on at the White House because on President Obama’s request though not formal order, CIA withheld the documents that would tell us that from SSCI. Why not spend his time calling for the release of those documents rather than parroting CIA propaganda credulously? I suspect Obama would take Professor Cole’s calls to release the documents CIA protected at the behest of the White House more seriously than he has taken mine. Let’s see what really happened in discussions between CIA and the White House, in those documents the White House has worked hard to suppress.
Just as importantly, though Cole has not mentioned it in any of his recent interventions here, what appears to have set the momentum on torture rolling (as well as the execution of an American citizen with no due process) is the abuse of covert operation authority. This is something that a prestigious Constitutional law professor might try to solve or at least raise the profile of. Can we, as a democracy, limit the Article II authority of the President to order people to break the law such that we can prevent torture?
Because if not, it doesn’t matter who we blame because we are helpless to prevent it from happening again.
Jay Bybee just gave a speech at University of Utah on the Constitution at which he tried to claim the torture memos that bear his name included constraints that no one else has been able to find.
One middle-aged man stood to the side of the classroom with a sign reading “Torture Is a War Crime.” A woman of a similar age next to him tried to ask Bybee about executive branch power and “the secret torture of Muslims.” The moderator from the Federalist Society cut her off before she finished the question.
“That question is way beyond my ability to predict,” Bybee then replied.
After the question-and-answer period, Irvine approached Bybee and tried to ask more about the memos.
Bybee pointed to a section in one memo telling the CIA that if the facts change, to notify the Justice Department for an updated opinion. Bybee also invited Irvine to his offices in Las Vegas to discuss the issue further.
Irvine said he would visit Bybee the next time he is in Las Vegas.
Irvine said moments later that the speech didn’t make him feel better about the memos, though he found it interesting when Bybee described the constrictions on presidential power.
“That is not what I read in that  memo,” Irvine said.
It’s worth remembering, however, that Bybee claims — and the record supports his claim — that he wasn’t all that involved in writing the torture memos that bear his name. According to his own attorney, Maureen Mahoney, he swooped into the memo-writing process just weeks before they were finalized.
The reason she gave for why Bybee was so uninvolved in the nitty gritty of rubber stamping torture is worth noting. Jay Bybee was too busy protecting the secrecy of Cheney’s sweetheart Energy Task Force to oversee his nominal subordinate John Yoo on torture.
I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)
Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5
5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).
Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.
How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.
All one OLC office’s work of expanding Executive Authority to coddle corporations and torture prisoners.