Warrantless Wiretap Memos Timeline

I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

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Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?

By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.

[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.

The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.

Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.

The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,

OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.

I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).

The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.

Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).

The NSA is part of the military .

The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”

But the proposition for which that memo is cited* in footnote 10 of the memo is:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

So, what does this mean? Depends on how you define “domestic military operations”, don’t it?

I argue the 10/23/01 memo was the lawyerly justification for:

(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).

All of those things are military operations. 

The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

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Two-Fronted War in Defense of the Constitution in the House

The AP reported on Steven Bradbury’s tortured logic about water-boarding.

”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.

That is, waterboarding is not legal today, but it could be tomorrow if Bradbury made it so at the bidding of David Addington.

That tortured logic is part of Bradbury’s prepared statements for an appearance before HJC’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (click here to follow along).

Meanwhile, Chairman Conyers is appearing before the Rules Committee (on CSPAN1) supporting his contempt resolution, describing the importance of the contempt resolution to the balance of powers.

Some have said we risk more if we lose this fight. If we countenance a process where our subpoenas can be readily ignored, where a witness doesn’t even have to bother to show up or tell us that they’re not coming, then we’ve already lost. This is not a matter of vindicating the Judiciary Committee.

Republicans are playing nasty–interrupting the Lantos memorial for stupid parliamentary tricks. Lamar Smith thinks we shouldn’t pass this rule because we won’t also allow the government broad powers to wiretap us.

And Bradbury is assuring "the committee that every opinion I sign represents my best judgment regardless of political currents."

I’ll try to follow both hearings.

Nadler: Is waterboarding a violation of the Federal torture statute?

Bradbury: I think it was reasonable to say that it didn’t violate the Federal torture statute. Your description of the procedure is not accurate description of procedure used by CIA.

Nadler: My description is one given to us by former interrogators.

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Working Extra Hours Is Extra-Constitutional

I guess I shouldn’t be surprised that, according to the Tuesday-through-Thursday Republicans and the Most-Vacation-Ever President, working extra days is extra-constitutional. That’s the implication, after all, of the Administration’s little temper tantrum over the fact that the Senate stayed in session over Christmas to prevent Bush from recess appointing Steven Bradbury.

Q Tony, Reid’s quote on that was — he said he called John Bolten, who, "He called me back and said it is Bradbury or nobody. I said, you’re willing to now allow 84 of your people to get approved because of this guy? He said, yep, that’s what the President wants."

MR. FRATTO: I think what the ask of the administration was, was for the President to give up his constitutional authority to make recess appointments. The power to make recess appointments is granted to the President in the Constitution. And that’s what the President was being asked to forego.

Now, the Senate, then, went and took the extra constitutional act of — over the holidays, of engaging in speed sessions with the soul purpose of frustrating the President’s constitutional authority to make appointments.

So it’s not an offer that we make — you know, that we would find credible or appropriate. And it’s also, again, not the way this system is intended to work. The system — the way it is intended to work is the President nominates, the Senate reviews the nominee, and they can give an up or down vote on these nominees, and we can either put them in place, as the President intended, or the Senate can vote them down. That’s the power that the Constitution gives them.

Apparently somewhere between Article I and Article II of the Constitution it mandates vacations. Who knew??!

Did Bush Re-Nominate Bradbury to Control Mukasey?

Mind you, I’m sure Bush re-nominated Steven Bradbury, the second incarnation of John Yoo, because Bradbury has dutifully shredded the Constitution on demand, and Bush would like to reward him. But the National Journal’s coverage of the Bradbury re-nomination raises an interesting point. It notes, as does everyone else, that Bradbury’s nomination is a big "Cheney yourself" to the Democrats who have refused to approve Bradbury’s nomination in the past.

In the latest example of the continuing partisan rifts over CIA interrogation techniques, Bush renominated lawyer Steven Bradbury to a senior post at the Department of Justice yesterday, despite years of Democratic resistance to his nomination.


Bush’s previous attempts to install Bradbury permanently as head of the OLC stalled during the confirmation process, when the DOJ refused to provide senators with copies of Bradbury’s legal opinions on terrorism issues. His previous nominations have expired, and last year Democrats pressed Bush to withdraw Bradbury’s candidacy for the post. But the administration refuses to yield, claiming that Bradbury’s opinions on interrogation techniques do not contradict the law.

But then it points out that Mukasey promised to review the existing OLC opinions to make sure they don’t shred the Constitution.

During his own confirmation hearings last fall, Attorney General Michael Mukasey pledged to review the controversial OLC opinions and "change them" if need be.

Now, I have no idea whether Bush re-appointed Bradbury with Mukasey’s approval; John Ashcroft was able to scuttle John Yoo’s appointment to the OLC, which led to the appointment of Jack Goldsmith. But I imagine Bush (and more importantly, Cheney) wasn’t too happy with the way that worked out.

Certainly, when Mukasey visits the Senate Judciary next week, they ought to ask him whether Bush consulted with him before he re-appointed Bradbury.

Whether Mukasey approved that re-appointment or not, though, the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

How DOJ Put Off Confessing To Their Pixie Dust

After folks noted this footnote from Steven Aftergood’s request that the Office of Professional Responsibility look into the Pixie Dust* surrounding Executive Order 13292 and Dick Cheney’s claims to be a Fourth Branch…

2 A copy of the OLC letter is attached, and may also be found online here: . The July 20, 2007 letter did not become public until December 11, 2007 when it was published by Marcy Wheeler on her blog Empty Wheel ( One day later, the document was released to me under the Freedom of Information Act by OLC.

…we got into a discussion of the chronology behind OLC’s rather remarkable timing in their response to Aftergood. So I asked Aftergood for some clarification. This is what he said regarding the OLC’s insta-FOIA response on December 12:

You published the doc on December 11, and I followed with this later that day.

OLC finally responded to my FOIA request by letter dated December 12. They never denied my request, but they certainly took their sweet time.

So apparently OLC noticed that Aftergood already had the document, so they finally decided they could give it to him. Nice to see they respect the FOIA process so thoroughly.

But I’m at least as interested in what went on before that. Aftergood explains: Read more

Steven Aftergood Takes on Pixie Dust

Oh this ought to be fun.

You’ll recall that when I was in my week-long Pixie Dust* tizzie last year, I was the first to reveal the purported resolution of Cheney’s Fourth Branch stand-off with Bill Leonard and Henry Waxman.

Finally, when Bill Leonard of ISOO appealed to DOJ for a ruling on Cheney’s refusal to submit to the plain text meaning of Bush’s EO, he was told (six months later) that the EO had turned to Pixie Dust. Specifically, he was told four years after the fact that President Bush did not intend for OVP to be an agency under the EO.

On July 12, 2007, the Counsel to the President wrote a letter to Congress stating that "[t]he President has asked me to confirm to you that … the Office of the Vice President … is not an ‘agency’ for purposes of the Order." … That statement on behalf of the President resolves the question you presented to the Attorney General. Therefore, the Department of Justice will not be providing an opinion addressing this question.

Poof! Four years after Cheney stopped reporting his classification activities, three years after NA tried to do the original inspection, Bush got around to telling Bill Leonard that the plain text of the EO doesn’t mean what it appears to mean. And Bush only told Leonard that news via Fred Fielding via Sam Brownback via Steven Bradbury. It took Congress threatening to withdraw funding from OVP before the President decided to tell the guy whose job it is that the EO at the center of his mandate doesn’t mean what it appears to mean–and what he has understood it to mean for all the years he has done the job.

But Steven Aftergood isn’t satisfied with that resolution. In particular, he’s not happy with Steven Bradbury’s snotty refusal to provide a ruling on the underlying conflict, as is mandated by the Executive Order (unless, of course, that, too, has been turned to Pixie Dust).

Attorneys at the Justice Department Office of Legal Counsel violated the executive order on classification and damaged oversight of the secrecy system last year when they refused to process a request from the Information Security Oversight Office for an interpretation of the order, according to a complaint filed yesterday (pdf) by the Federation of American Scientists Project on Government Secrecy.

Last January, J.William Leonard, the Director of the Information Security Oversight Office (ISOO), wrote to the Attorney General seeking an opinion on the applicability of classification oversight requirements to the Office of the Vice President after that Office ceased to cooperate with ISOO oversight.

But in July, Steven G. Bradbury of the Office of Legal Counsel wrote back that the Justice Department "will not be providing an opinion addressing this question."

By refusing to provide an opinion, Mr. Bradbury appears to have violated the President’s executive order, which requires that "the Attorney General… shall render an interpretation" of any disputed matter when requested by ISOO. A response is not optional, and yet no response was provided. Read more