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Jay Bybee Wrote Memo Permitting Broad Sharing of Intelligence-Related Grand Jury Information

In March 2011, I noted a previously unreleased OLC memo mentioned in Jack Goldsmith’s May 6, 2004 illegal wiretapping memo seemingly giving the President broad authority to learn about grand jury investigations.

For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)

The Brennan Center has now liberated that memo (though they don’t yet have it linked). And it shows that in July 2002, Jay Bybee interpreted a section of the PATRIOT Act that expanded information-sharing to include sharing grand jury information, with no disclosure, with the President and his close aides.

The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.

The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.

[snip]

First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.)  In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.

Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough.  The memo goes much further, however.  Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court.  That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement.

And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose.  Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply.

I’ll have more to say about this once I get the memo.

But imagine how it might be used in, say, the Valerie Plame or the Thomas Drake investigations. They were, after all, investigations about the unauthorized disclosure of foreign intelligence information. They also happened to be investigations into Dick Cheney’s law-breaking, but they were ostensibly about leaks of precisely the kind of information Jay Bybee permitted be shared with the President and … the Vice President. And in the case of the Plame leak, once Cheney got a hold of the information, he could share it with Karl Rove who could do whatever the fuck he wanted with it.

Mind you, once Pat Fitzgerald got put in charge, I doubt such sharing happened on the Plame case–at least not before August 2005, when Jim Comey retired. After that, who’s to say what David Margolis, the master of institutional self-preservation, might have done with grand jury information implicating top White House officials?

And, yes, by all appearances, this memo remains operative.

Update: Here’s the memo. And here’s the operative passage:

 Although the new provision in Rule 6(e) requires that any such disclosures be reported to the district court responsible for supervising the grand jury, disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

John Brennan Channels Scott McClellan Dodging Leak Questions

When Margaret Warner asked John Brennan about the leak witch hunt today, he said, in part,

First of all, there are investigations underway, so we have to be mindful of that and respectful of that investigative process.

Secondly, the President has made it very clear that any leak of classified national security information is something that should be rigorously pursued.

Let’s see. Dodging the question by invoking an ongoing investigation.

Check.

Reassurance that–quote–“the President has made it very clear” that he takes this stuff seriously.

Check.

Brennan must not have seen this movie when it was first released. Because this strategy ultimately didn’t work out that well.

Using Pensions to “Punish” “Leaks” Will Subject Clearance Holders to Arbitrary Power

The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

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Cheney’s Thugs Win the Prize for Leak Hypocrisy

I wasn’t much interested in Mitt Romney’s latest efforts to change the narrative from the evil things he profited off of at Bain Capital and the tax havens he stashed the money he got as a result. Not only don’t I think journalists will be all that interested in Mitt’s claim that Obama’s White House is a leaky sieve. But I’m not about to defend the Most Fucking Transparent™ White House in Fucking History against such accusations.

Until Cheney’s thugs start leading the attack.

Such as Eric Edelman, who says we need “change” because Obama’s Administration leaked details of the Osama bin Laden raid.

Eric Edelman is this guy:

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy [Edelman] and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line

Four days after Edelman made the suggestion to leak information about Joe Wilson’s trip, Scooter Libby first revealed to Judy Miller that Valerie Plame worked at the CIA.

But Edelman is not the only one of Cheney’s thugs bewailing leakers: (h/t Laura Rozen, who follows BabyDick so I don’t have to)

Romney today at VFW on contemptible conduct of Obama White House leaking classified info for political gain. Must read. http://tinyurl.com/bw4s4lt

Now, to be fair to dear BabyDick, unlike Edelman she has not been directly implicated in her father’s deliberate exposure of a US CIA officer working to stop nuclear proliferation. Unlike Edelman, she was not protected from legal jeopardy by Scooter Libby’s lies.

But she did co-author her father’s book, which was a whitewash of his treachery (even if it did reveal that Cheney had a second interview with Pat Fitzgerald, one treated as a grand jury appearance, just around the time Fitzgerald subpoenaed Judy Miller. BabyDick Cheney is complicit in the lies the Cheney thugs have used to hide what a contemptible leak for political gain the Plame leak was.

And now she thinks she should lecture others about far less treacherous leaks?

Government Invokes Valerie Plame to Argue CIA Acknowledgment that Bush Authorized Torture Is Not Official Acknowledgment

As you’ll recall, back in April I went on a week-long rant about the great lengths–including submitting a secret declaration from the National Security Advisor–the Obama Administration had gone to hide a short reference to the September 17, 2001 “Gloves Come Off” Memorandum of Notification. In doing so, it appears the Obama Administration hid George Tenet’s invocation of the Presidential MON that authorized the capture and detention of terrorists but which the Bush Administration used as its authorization to torture those alleged terrorists. (post 1, post 2, post 3, post 4, post 5, post 6, post 7)

In a classified hearing on March 9, the government claimed that releasing the reference in question would “reveal[] for the first time the existence and the scope of” what now clearly appears to be the MON. After I went on my rant, the ACLU informed the Circuit Court that the claim might be false. If the reference was indeed to the MON, ACLU wrote, then the CIA had already revealed that the September 17, 2001 MON authorized torture in this litigation.

If true, it may be relevant to this Court’s consideration that the CIA officially acknowledged the existence of that memorandum in this very litigation.

In response to appellees’ Freedom of Information Act request, the CIA identified as responsive “a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists” and “to set up detention facilities outside the United States.” Eighth Declaration of Marilyn A. Dorn

On Friday, the government responded, effectively saying that Marilyn Dorn’s declaration doesn’t count as official acknowledgement of the MON.

For the reasons set forth in the Government’s classified filings, the disclosures identified in plaintiffs’ letter, including the information provided in the Dorn declaration, do not constitute an official disclosure of the information redacted from the OLC memoranda.

Notably, in its discussion of the cases which it cited to support its claim that Dorn’s description of the MON doesn’t count, it also included language that would address John Rizzo’s extensive blabbing about the MON as well as Glenn Carle’s CIA Publication Review Board-approved reference to CIA having received a Finding covering torture (neither of which the ACLU mentioned in its letter). But look what case they cited to make that argument.

This Court applies “[a] strict test” to claims of official disclosure. Wilson v. CIA, Read more

Leak Prosecutions: Enforcing Secrecy Asymmetry Does Not Equate to Rule of Law

Matt Miller has a piece in the Daily Beast defending the Obama Administration’s prosecutions of leakers. Now, as Josh Gerstein notes, Miller makes his work easier by cherry-picking which cases to discuss; he doesn’t mention Thomas Drake, who was pretty clearly trying to expose waste and fraud (as well as the government’s choice to spend more money to provide less privacy protection). And he doesn’t mention Bradley Manning, who is alleged to have leaked at least some materials that expose war crimes and a lot more than expose abuse (though note, DOD, not DOJ, is prosecuting Manning).

But Miller’s argument suffers from a much bigger problem. He operates under the assumption that the sole crux of legitimacy arises from a distinction between whistleblower and leaker that he presents as absolute.

To start with, that distinction isn’t absolute (as Manning’s case makes clear). But even with John Kiriakou, whom Miller does discuss, it’s not absolute. Recall what Kiriakou was charged with: leaking the identity of a still covert officer involved in the torture program, being one of up to 23 people who leaked that Deuce Martinez–who was not covert–was involved in the torture program (though didn’t do the torture), and lying to the CIA Publication Review Board about the classification of a surveillance technique details of which have been readily available for decades (and which seems to be related to the Secret PATRIOT GPS application targeting American citizens in probable violation of the Fourth Amendment). In other words, two people involved in an illegal program and one technique that was probably improperly classified and since become another questionably legal executive branch spying technique.

But the entire investigation arose because defense attorneys with Top Secret clearance used the covert officer’s name in a still-sealed filing about the abuse their client had suffered at the hand of the US, possibly–though we don’t know–at the hand of the covert officer (because he is covert, the defense attorneys did not use the officer’s name or picture with their client).

Now, I have no way of knowing (nor does Miller) Kiriakou’s motive, and his case will probably end in a plea, meaning we’ll never get to learn it at trial. But the very genesis of the case–the defense attorneys’ attempts to learn who had tortured their clients so as to be able to adequately represent them–arises from the government’s failure to prosecute anyone for torture and its insistence on withholding arguably relevant information from legal teams, presumably in part to prevent them from attaining any redress for that torture in courts.

So regardless of Kiriakou’s motive, to argue for the legitimacy of his prosecution as events have transpired is to distract from the larger system in which the government uses secrecy to avoid legal consequences for its own crimes–regardless of what that does for justice.

And it’s not just with Gitmo detainees’ lawyers that the government has withheld information to prevent justice being done. It did that with al-Haramain, the Maher Arar suit, Jeppesen Dataplan–the list of times when the government has claimed something, even a widely known fact, is super duper secret just so it can’t be sued or prosecuted is getting quite long and tired. And, of course, it continues to do it with the Anwar al-Awlaki killing, preferring inconsistent claims of Glomar and state secrets to full accounting not just of Awlaki’s killing, but of the claims about Presidential power more generally.

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CIA Ousts Another Officer Working on Iran because of Political Shitstorm

Remember how Dick Cheny outed Valerie Plame and in the process hurt our efforts to prevent Iran from getting nukes?

And since then, Iran has just been working away, allegedly, to get nukes?

Well, at a time when much of the national security establishment is drumming up war against Iran, they’ve done it again.

A senior CIA analyst resigned Tuesday amid accounts that she had been pressured to step down after her husband — a former agency employee — was charged with leaking classified information to the press.

Heather Kiriakou had served as a top analyst on some of the most sensitive subjects that the agency tracks, including leadership developments in Iran. Her husband, John, faces a maximum of 30 years in prison after being accused of disclosing details about secret CIA operations as well as the identities of undercover officers.

Two sources in direct contact with the Kiriakous said that Heather had submitted her resignation under pressure from superiors at the CIA.

Because in this government, it’s far more important to prosecute someone for publishing information about the “magic box”–technology which has been publicly available for years–than it is to ensure we have sound analysis about what Iran is doing.

Or maybe that’s the whole point.

Is DOJ Trying to Hide Valerie Plame at the Sterling Trial?

While I was away in South Carolina, the government released the redacted copy of Leonie Brinkema’s order on several issues relating to the Jeffrey Sterling case (the government immediately appealed aspects of this ruling).

There are several interesting aspects of the ruling. First, Brinkema refused to let the government admit the talking points Condi Rice used to convince the NYT not to publish the Merlin story back in 2003 without Rice testifying herself. Although the ruling will probably have a negligible affect in this case, I nevertheless find it ironic, given that the government gave up prosecuting two former AIPAC employees when their defense attorney Abbe Lowell threatened to call Rice to testify about her A1 cutout habits.

Also, Brinkema is allowing the government to introduce a redacted copy of Sterling’s 2000 performance evaluation, presumably so they can argue that Sterling leaked the details about Merlin out of anger that his Equal Opportunity complaint went nowhere. I find this troubling. When that suit was litigated, the government declared state secrets over something, presumably the real performance review. Given the possibility the review referred to Merlin, it seems unfair to allow the government to use the performance review against Sterling without releasing the whole thing (if that is, in fact, what the government invoked state secrets over).

But I’m most interested in what Brinkema’s order suggests about the government’s effort to deal with CIA witnesses. The government, it appears, wants to keep the names of 10 former and current CIA employees who will testify secret from both the defense and the jury.

[T]he Court will hold in abeyance pending further briefing the Government’s request not to disclose, even under seal, to the defendant or jury the true names of these witnesses as they testify.

Brinkema’s planned approach–in addition to using screens to hide the witnesses, she plans to delay the time when potential jurors would get a list of potential witnesses–suggests these names might be publicly recognizable.

Specifically, asking potential jurors if they recognize the names of any witnesses will be delayed until a qualified pool of jurors is established and jurors stricken for cause have been excused from the courtroom. Then, as groups of jurors are considered for peremptory challenge, they will be shown an alphabetical list containing the full names of all witnesses, with no other identifying information. Any jurors recognizing a witness’s name will be stricken for cause. Because the witness list will contain the full names of many CIA employees whose identities the Government wants to protect, it will remain classified; however, a redacted list will become part of the public record.

Of course, this trial will take place in Northern Virginia; it’s quite possible that these CIA witnesses are neighbors or friends of potential jurors. And the government has a clear interest in preventing these potential jurors from learning that their neighbors are actually spooks.

But as the video above makes clear, at least one of the former CIA employees who might be called to testify, Valerie Plame, would be recognizable to a far larger group of people–those who even remotely followed the CIA Leak Case (I think Valerie would have been on maternity leave during the actual events described in Risen’s book). And this filing (see PDF 5-6)–an argument laying out Pat Lang’s proposed testimony refuting the government’s claim that the information Sterling allegedly leaked hurt the country–shows Lang read the FBI interview reports of 22 witnesses; the last name of two of those witnesses, one classified, one apparently not, starts with a “W.”

Mind you, I’m not suggesting the government doesn’t already have very good reason to want to hide the CIA affiliation of these 10 proposed witnesses–they do, which is part of the reason their case may be in trouble, since these witnesses will be used, in part, to prove Sterling’s alleged leaks were serious. Sterling has a clear right to confront his accusers, but the government wants to ensure he doesn’t even know their real names (this may be one of the things the government is appealing).

But I wanted to raise the possibility that they want to hide at least one of these identities not because the identity remains classified–Dick Cheney ruined that–but instead out of a desire to avoid confirming that Plame played a role in the Merlin operation.

Elliott Abrams: A Convicted Liar Defends a Convicted Liar’s Boss by Lying

Elliott Abrams makes a good point: the “reviews,” thus far, of Cheney’s book have focused on particular incidents rather than on the scope of the narrative. Once I get done with it, I plan to do a full review, which I think would have been better titled, “Portrait of the Evil Bureaucrat as a Young Man.”

Yet the sole defense of the full memoir Abrams offers is an assertion that Cheney’s principles as Vice President remained the same as those that guided him when he protected the illegal acts of the Iran-Contra conspirators.

I first knew Cheney when he was chairman of the Republican Policy Committee in the House of Representatives (from 1981 to 1987), and our discussions centered then on the wars in Central America. Neither controversy nor scandal shook his view that preventing communist takeovers in that region was an important goal for the United States. Later, when I served at Bush’s National Security Council, I sometimes worked with Cheney, then vice president. Despite those who claim he changed over time, I did not find that so. The central qualities remained: total devotion to principle and to country, and complete and unswerving commitment to any policy he believed served American interests.

Curiously, Abrams neglects to admit that Cheney’s embrace of illegal means amounted to an embrace of Abrams’ own illegal means. No wonder Abrams is so fawning!

But the rest of Abrams’ piece on Cheney does precisely what he criticizes others for: relitigating individual events, notably Cheney’s policy differences with Condi Rice and Colin Powell.

Which is how he sets up his rather bizarre claim that Cheney never leaked.

Many use leaks to protect their personal interests. Cheney did none of these things. When he differed from a policy he told the president so, privately, and told the press and those outside the White House nothing — a practice that earned him unending attacks in the media from gossip-hungry journalists.

[snip]

As to Powell, the criticism is more personal, for Cheney accuses him of criticizing the president and his policies to people outside the administration and of constant leaking.

Powell himself has admitted that he could not continue after 2004 because his views could not be reconciled with those of Bush. He has not admitted to the leaking, but the leaks by Powell and his deputy, Richard Armitage, were too widely known in Washington to require any additional proof. And as to Cheney’s indictment of Powell and Armitage for standing by while Scooter Libby, Cheney’s chief of staff, was unjustly prosecuted for the leak of Valerie Plame’s name, the facts are in; the complaint is justified.

Just as a reminder, Abrams was, himself, one of those initially listed among the leakers of Valerie Plame’s identity and we never learned Judy Miller’s sources for Plame’s identity besides Scooter Libby, so perhaps here again he is lauding Cheney for protecting him.

But even aside from Abrams’ factually incorrect statement of the facts revealed at the Libby trial–notably, that Libby lied to hide the fact that Cheney had ordered him to leak information, possibly including Plame’s identity, to Judy Miller–he ignores the leak Cheney’s office used as cover for their conversations with Bob Novak on July 7, the day before Novak asked Armitage questions that elicited Plame’s identity. On July 7, Cheney’s office spoke to Novak, purportedly in an attempt to scotch Frances Fragos Townsend’s appointment as Bush’s Homeland Security Advisor (precisely the kind of leak, Abrams says, Cheney didn’t do). And just as a reminder, Cheney was the only person known to have refused to release journalists he spoke to about Joe Wilson and Plame from their confidentiality agreements.

Elliott Abrams’ post amounts to a celebration that Dick Cheney would use any means–even illegal means–to achieve the ends he believed important, something Abrams himself has done too. And in support of that celebration, this convicted liar lies about Cheney and leaks; he lies about the substance of another convicted liar’s lies.

So I guess Abrams did pay tribute to Cheney’s entire life memoir after all.

Turns Out Cheney Was Never Really Vice President After All

I regret to inform you–and I do mean regret–that I’m going to have set aside a good deal of the next week “looking backward” at Dick Cheney’s career. His book is out next week and already he’s dropping some bombs, as only Dick can drop bombs.

Such as, for some period during his tenure as VP, there was a signed resignation letter in his man-sized safe (presumably right next to the Wilson op-ed on which Cheney hand-wrote an accusation that Plame sent her husband on a junket), known only to W and “a Cheney staffer.”

“I did it because I was concerned that — for a couple of reasons,” Cheney tells Jamie Gangel. “One was my own health situation. The possibility that I might have a heart attack or a stroke that would be incapacitating. And, there is no mechanism for getting rid of a vice president who can’t function.”

Cheney kept the signed letter locked in a safe, he reveals in the memoir “In My Time,” which comes out Tuesday. President George W. Bush and a Cheney staffer knew about the letter.

I presume that NBC and ABC will be sufficiently incompetent that they won’t ask Cheney what the other reasons were. Or who the staffer was.

So barring actually learning that information (until I go shell out an inordinate amount for a book I plan to throw a lot), here are my guesses.

In addition to signing the letter in case his heart gave out and turned him into a vegetable, Cheney also kept it in case he suddenly got into very big legal trouble. Over leaking a CIA officer’s identity, maybe, over knowingly authorizing torture (including in a few cases I expect we’ll learn more about), or misusing the military. Or whatever else.

And if just one staffer ever knew of the letter, my bet is David Addington knew.

But here’s the thing. Once Cheney signed that resignation letter, was he still VP? Or does that mean all the things he did, bootstrapping his own constitutional power onto the President’s explicit power, were illegal? We know Republicans claimed that he could insta-declassify things like NIEs and CIA officers identities. But if he did that after having signed a letter of resignation that the President knew about, doesn’t that mean he wasn’t VP anymore? And those things were triply illegal?

Whoo boy. Send beer. I can tell already it’s gonna be a long week.