June 23, 2024 / by 


Crossfire Hurricane Glossary

Even before it went live yesterday, I was looking through Marcy’s incredibly awesome timeline on Crossfire Hurricane. It is a stunningly important and good thing, not only for those here, but those everywhere. I read things day and night, and have seen many timelines on this subject, but none that approach that which Marcy has produced. That said, if even I have to do double takes on what some of the names and acronyms are, I thought a guide was in order.

So, I thought an enduring glossary would help not even now, but going forward. What follows will be what appears appropriate now, and this post may be supplemented lated as necessary. I hope it helps. Maybe at some point I’ll come back an make it alphabetical, but for now I am just going from front to back in order of appearance.

Some are patently obvious and need no explanation, e.g. “CIA” for instance. As to the rest though, away we go:

ASAC: Assistant Agent In Charge, typically of an FBI Field Office.

Zainab Ahmad: Is a seriously kick ass former member of DOJ. Ahmad was a prosecutor with the DOJ who long specialized in investigating and prosecuting terrorism. She served as an AUSA in the Eastern District of New York until 2017, successfully prosecuting several high-profile terrorism cases. In 2017, she was reassigned to the Special Counsel for the United States Department of Justice team. After Mueller closed up shop, Zainab landed as a white collar and cyber security specialist at the NY office of Gibson Dunn.

Evgeny Burykov: A convicted Russian spy. He was arrested on January 26, 2015, charged with, and pleading guilty to, spying on the United States for the Russian Foreign Intelligence Service (SVR). Buryakov was a New York-based Deputy Representative of Vnesheconombank, Russia’s state-owned national development bank.

CHS-3: In addition to Steele (CHS-1) and Halper (CHS-2) there was another FBI informant who spoken on a number of occasions with George Papadopoulos. The person’s identity is unknown. Papadopoulos told him a version of the Joseph Mifsud in fall 2016.

Anne Conway: Conway is a GHW Bush nominated judge to the Middle District of Florida, and who serves on the FISC, since being do designated by John Roberts in 2016. Judge Conway approved a 2017 FISA Court warrant for Carter Page, a former adviser to the 2016 Trump Campaign.

Raymond Dearie: Is a well respected Senior United States District Court Judge from EDNY originally nominated by Reagan, and served on FISX between July 2012 and July 2019, after appointment by Chief Justice John Roberts.

Oleg Deripaska (Oligarch 1): Paul Manafort’s one-time paymaster, and also the client of a lawyer employing Christopher Steele in 2016. In that role, Steele repeatedly offered to broker a meeting at which Deripaska could provide derogatory information on Manafort. FBI belatedly considered whether Deripaska was a source of disinformation for the dossier.

Alexander Downer: Former Australian High Commissioner (ambassador) to the UK (2014-18), former leader of the Australian Liberal Party (1994-95), and former Australian Minister for Foreign Affairs (1996-2007). Definitely not a coffee boy, but met with one over a few drinks in London.

For bmaz, I note that he is a fan of V8 motor racing and has a CMAS racing license. (h/t EH)

Stu Evans: Stuart Evans, deputy assistant attorney general of DOJ’s National Security Division. He’s the person who insisted on adding a footnote alerting the FISC of Steele’s potential bias.

FIFA: The international governing body of soccer. A body Chris Steele gave work and information on to not just US authorities but worldwide ones too.

Michael Gaeta (Handling Agent 1): An FBI agent, previously an attache in Rome and one time handler of Christopher Steele. A specialist in Eastern European organized crime including in the Republic of Georgia, Russia, and Ukraine.

Taushina Gauhar: Is a (former) Deputy Assistant Attorney General (DAAG) in the Department of Justice National Security Division (NSD) and FISA lawyer specialist.

JD Gordan: Gordan is an American communications and foreign policy advisor, who served as a Pentagon spokesman during the Bush Administration and later a National Security Advisor to Donald Trump. He is also a crackpot gadabout on forums such as One America News Network, Fox News, Sky News, The Daily Caller, The Hill, and The Washington Times. He’s the guy who ensured that the Republican platform did not incorporate lethal aid to Ukraine.

Stefan Halper (Source 2): Ooof, this could go on even longer, but per Wiki, Halper is an American foreign policy spy and Senior Fellow at the University of Cambridge where he is a Life Fellow at Magdalene College. He served as a White House official in the Nixon, Ford, and Reagan administrations, and was reportedly in charge of the spying operation by the 1980 Ronald Reagan presidential campaign that became known as “Debategate”. Through his decades of work for the CIA, Halper has had extensive ties to the Bush family. Through his work with Sir Richard Dearlove he also has ties to the British Secret Intelligence Service MI6. For purposes here, Halper acted as an FBI informant for its investigation into Russian interference in the 2016 United States elections.

Kathleen Kavalec: Former Deputy Assistant Secretary of State who met with Chris Steele in October 2016.

Mary McCord: McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. She now teaches at Georgetown and contributes at Lawfare.

Sergei Millian (Person 1): A Belarus born businessman knee deep in everything Russia and a putative source for Chris Steele. He was also the subject of a counterintelligence investigation during 2016-17. Much still not necessarily clear about Millian.

NYFO: New York Field Office of the FBI.

OGC: Office Of General Counsel at the Department of Justice.

OI: The Office of Intelligence at DOJ. They’re in charge of writing FISA applications.

Bruce and Nellie Ohr: Bruce Ohr is a United States Department of Justice official. A former Associate Deputy Attorney General and former director of the Organized Crime Drug Enforcement Task Force (OCDETF). He is an expert on transnational organized crime and has spent most of his career overseeing gang and racketeering-related prosecutions, including Russian organized crime. Nellie is Bruce’s wife, and a longtime expert on all things Russian. She worked at one point for Fusion GPS as a contractor between October 2015 and September 2016.

Victor Podobnyy: An Russian SVR (foreign intelligence) officer worked under the cover as a banker who was recruiting Carter Page in 2013.

SSA: Supervisory Special Agent.

Scott Schools: Scott Schools was the “highest-ranking career civil servant at the United States Department of Justice”, serving as Associate Deputy Attorney General. For those who have been around long enough, he was, for a while, the “new” David Margolis. Schools, a putatively decent chap, is gone now, having been replaces by a Jeff Sessions designated mope named Bradley Weinsheimer.

Glenn Simpson: Former journalist for the Wall Street Journal and co-founder of Fusion GPS.

Paul Singer: An American billionaire hedge fund manager, activist, investor, vulture capitalist, and philanthropist. A hard line Republican promoter and shill, but also a longtime supporter of LGBTQ rights.

Bruce Swartz: Deputy Assistant Attorney General for International Affairs. Key to the story because of a purported effort by Kurt Volker to get Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine. Still a lot of questions open as to Swartz.

UCE: An FBI employee working undercover. A woman working under the pseudonym Azra Turk accompanied Stefan Halper on his interviews with George Papadopoulos.

Sally Yates: Former US Attorney for Northern District of Georgia, Deputy Attorney General, and Acting AG.

The Discussion of White Supremacist Terror Ignores the Transnational Nature of It

Betsy Woodruff has the scoop that, last year, the National Counterterrorism Center set up a small group focusing on what the article calls “domestic terror.”

In early 2018, the official said, the head of the NCTC directed lawyers from the intelligence community to revisit its understanding of the law that governs it. A Democratic official on the House Intelligence Committee said Congress urged the Center to conduct the analysis—and fast.

By the summer of 2018, the lawyers concluded that NCTC could use its considerable resources to analyze purely domestic threats, as long as it did so to help the FBI and the Department of Homeland Security (DHS). NCTC officials shared that view with senior officials in the Office of the Director of National Intelligence that oversees the NCTC, and they didn’t get any pushback, per the official. Then the battleship started to turn—just a tad.

In the year since then, the official said, analysts in an NCTC entity that focuses on the radicalization and mobilization of potential foreign terrorists have been working on matters related to domestic terrorism.

NCTC officials have also begun setting up “a small element” in the Center’s Directorate of Intelligence focused on the domestic terror threat, the official said. The official noted that these efforts are not large-scale, and that they have had “to beg and borrow from different areas” to corral resources for the new domestic terrorism work.

She goes on to quote former national security officials applauding the move and civil libertarians raising cautions. But she herself admits the bigger issue: what has always been bracketed off (including in early NCTC documents, Woodruff notes) as “domestic” is not.

To be sure, there’s a nomenclature problem when it comes to domestic and international terrorism, as hateful ideology can cross-pollinate between the U.S. and other countries. For instance, the New Zealander who murdered 51 people at two mosques cited American white supremacist Dylann Roof as an inspiration. Then the terrorist who allegedly murdered a worshiper at a synagogue in Poway, California cited the Christchurch shooter. When it comes to hate, Western nations have open borders.

The really awkward thing, which Woodruff implicitly acknowledges, is that the US exports white supremacist ideology and funding — whether through the networking of Steve Bannon or the Twitter feed of Donald Trump — in much the same way Saudi Arabia enabled Islamic terrorism before 9/11.

I agree with Hina Shamsi, quoted in Woodruff’s piece, that we need transparency about this more than anything. But the goal should be to understand what actually occurring in the government’s efforts to combat terrorism, and from that to learn what is necessary to protecting against terrorism.

Since 9/11, the government has used the existence of an international network — at first a network of internationally deployed operatives and money, and then a network existing in the vacuum created in Iraq and Syria in the wake of the Iraq war interacting with people in the US via social media — behind Islamic extremism as justification to treat brown terrorists differently than it treats white terrorists. Through that period — a period when white supremacist terrorism wasn’t being encouraged by the President — the FBI did a pretty good job of finding white supremacist terrorists.

The lesson from that fact should have been that all this infrastructure targeting brown terrorists was likely unnecessary, though it may have been a crutch for a time, because the government was (and may still be) culturally unable to bring the same nuance to investigations of terrorism by non-white non-Christians.

In recent years, some things have changed, even beyond Trump. The FBI has started playing games with its numbers (first inventing a category, Black Identity Extremism, to justify treating brown non-terrorists as terrorists, then eliminating that category and subsuming it under a racially motivated extremism category that hides the growth of white supremacist terrorism). Trump has eliminated some efforts to pursue white supremacist terrorism. Twitter has struggled with applying its standards equally when that would mean eliminating elected officials, including Trump, from the platform.

Given the normalization under Trump of white supremacist terrorism, it’s not clear whether the FBI can stay ahead of the danger anymore, as they were able to before Trump and his allies normalized all this.

But that suggests the problem is not about intelligence gathering, but is instead about the cultural factors that permit some kind of terrorism to thrive.

We’re only going to understand that, however, if we have real data to make the case.

Exigent Letters Timeline

July 2002: CAU formed

March 14, 2003: First exigent letter issued in NY

May 2003: First contract with telecom for onsite exigent assistance

March 2004: Last contract with telecom for onsite exigent assistance

February 2, 2005: Operation W NSL signed; Tracker database attempted

February 2006: Procedures to verify factual accuracy of FISA applications

March 9, 2006: Bush signs PATRIOT extension with new Section 215 guidelines

May 12, 2006: First blanket NSL (for Company B)

May 17, 2006: Assistant General Counsel sends email regarding exigent letters (leads to OGC “learning” of practice)

May 24, 2006: First Section 215 order approved by FISC

July 5, 2006: Second blanket NSL

August 2, 2006: AGC sends follow-up on exigent letters blanket NSL for Company B

September 18, 2006: Youssef cancels hot number service from Company C

September 21, 2006: Third blanket NSL

October 10, 2006: Company B changes policy on exigent letters to require SSA to say it is emergency involving death or serious injury.

November 7, 2006: AGC sends email to Valerie Caproni on blanket NSL, heads up for IG investigation

February 22, 2007: AGC tells Youssef the blanket NSLs may be PIOBs, need to be reported within 14 days

March 1, 2007: FBI draws up new guidelines, requiring factual predicate and limiting people who can authorize exigent letters

March 9, 2007: IG Report on NSLs including “any illegal and improper use” in 2003 though 2005

June 1, 2007: FBI Guidance on who could sign NSLs

August 28, 2007: First OLC request to approve exigent letters.

October 31, 2007: FBI tells IOB it will send letter on blanket NSLs and purge all illegally acquired information.

November 2007: FBI issues draft guidance on Community of Interest requests.

December 2007 to January 2008: Telecom personnel move out of CAU.

January 11, 2008: FBI issues new protocol for requesting phone records.

February 29, 2008: Bush guts the Intelligence Advisory Board, stripping it of investigative ability and oversight over IGs. http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/?page=1

March 13, 2008: IG Report on NSLs, assessing corrective actions of FBI and describing NSL usage in 2006

November 5, 2008: OLC issues opinion in response to August 28, 2007 request

January 16, 2009: OLC issues a response on whether Acting DADs and other Acting officials could sign NSLs

March 31, 2009: FBI formally informs IAB of NSL problems

August 17, 2009: Obama appoints Chuck Hagel to IAB.

October 29, 2009: Obama restores investigative ability to Intelligence Advisory Board

January 20, 2010: IG Report on exigent letters

June 5, 2013: Guardian publishes Section 215 order to Verizon calling for all call metadata on all customers over 3 month period. Dianne Feinstein makes it clear this is part of program in place since 2006.

Zoe Lofgren Didn’t Vote to Let Presidents Wage Unlimited War, But John Yoo Did

As a series of Presidents continue to claim the September 18, 2001 Authorization to Use Military Force authorizes fairly unlimited power on an unlimited battlefield, I keep coming back to this Tom Daschle op-ed, in which he described how Congress refused to extend the AUMF to US soil.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The op-ed is, as far as I know, the only public statement describing how Congress narrowed a breathtakingly broad claim for military force.

Until Wednesday’s drone hearing, that is.

In response to a comment from John Bellinger that it was appropriate for the Executive Branch to refuse to share its OLC memos with Congress, Zoe Lofgren suggested (1:36 and following) the President was exceeding the terms of the AUMF (she comes very close to saying the President broke the law, but stops herself). She refers to — as Daschle did — negotiations leading up to the AUMF that actually did get passed.

Lofgren: If you take a look at the Authorization to Use Military Force, which all of us voted for — those of us who were here (there was only one no vote in the House) — it says “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Now, are we to believe that everyone on this list was responsible for the 9/11 attack? I mean, is that the rationale?

Bellinger: No, your exactly right. All four of us agree with you that the 2001 AUMF, which was only about 60 words long — I was involved in drafting it literally almost on the back of an envelope while the World Trade Center was still smoldering — now is very long in the tooth. The good government solution, while extremely difficult and controversial, would be for Congress to work together with the Executive Branch to revise that AUMF. It’s completely unclear about what it covers, who it covers, where it covers.

Lofgren: If I may, I think it’s not as unclear as you suggest. There are — this was a limitation, and there were big arguments about it as you’re, I’m sure, aware, there was a prior draft that was  much more expansive. There was a prior draft that was much more expansive and it was narrowed so we could get bipartisan consensus and it was narrowed for an important reason. And I guess I — yes, the Executive has the ability to keep his legal advice confidential, that’s a long-standing principle, but since it looks like — at least, questions are raised — as to whether the executive is complying with the law, then if he feels he is, then I feel it would be a very positive thing for the Administration to share that legal advice with this committee and with the American people. [my transcript]

While I have not yet checked with Lofgren’s office, this — also from Daschle’s op-ed — seems to describe the more expansive AUMF the Bush Administration, advised in part by then Legal Advisor to the National Security Advisor John Bellinger, tried to get passed.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

That is, it seems (though I need to check with the Congresswoman’s office) that she’s reminding Bellinger that Congress refused to pass his napkin-back AUMF authorizing the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” And she also seems to be suggesting that’s precisely the kind of broad claim reflected in the white paper.

Now, I think I’ve made it clear that I support Lofgren’s case that the Administration should have to turn over its memos authorizing targeted killing.

But I also think she hasn’t looked at the publicly available still active OLC memos that are out there. As I was reminded by Amnesty International’s Zeke Johnson, among the fairly broad OLC memos written “while the World Trade Center was still smoldering” to authorize broad counterterrorism authority is this October 25, 2001 memo which has not been withdrawn.

It states, right from the beginning,

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Eleven days after Congress refused to authorize military force against just any terrorist threat, John Yoo reasserted the authority to do so. And no one — not Jack Goldsmith, not Steven Bradbury, not any of Obama’s OLC lawyers — has officially backed off that claim.

Along the way, Yoo invokes inherent authority, cites a bunch of Attorneys General, a Poppy Bush signing statement, and ends here:

In both the War Powers Resolution and the Joint Resolution [the AUMF], Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

So Lofgren doesn’t even have to get that memo authorizing the killing of an American citizen based on the word of an “informed, high-level officer” (though by all means, she should). Because this memo, readily available on DOJ’s website, asserts that the limitation she and Daschle believed they voted for on September 14, 2001 doesn’t limit the Executive Branch in the least.

“These decisions, under our Constitution,” John Yoo says, “are for the President alone to make.”

That AUMF, the one everyone keeps pointing to as imposing limitations on the President’s authority to (among other things) kill Americans in America? The Executive Branch, for over 11 years, has maintained that it cannot place any limits on the President’s determinations about the scope or method of fighting terrorists, broadly defined.

More on the Year-Long Pursuit of Mohamed Mohamud

Teddy did a diary this morning on a newly-reported detail in the case of Mohamed Mohamud–the Portland man accused of attempting to set off a bomb. The FBI had contacted him a year earlier than originally disclosed. The first contact with Mohamud the complaint describes took place in June 2010, after Mohamud was prevented from boarding a flight to Alaska.

On June 14, 2010, MOHAMUD was contacted at Portland, Oregon International Airport after he attempted to board a flight to Kodiak, Alaska. MOHAMUD was not allowed to board the aircraft. Shortly thereafter, MOHAMUD was interviewed by the FBI.

Shortly thereafter, an undercover agent contacted Mohamud, leading up to the July 30, 2010 meeting that was not taped.

An FBI Undercover Employee (UCE1) contacted MOHAMUD in June 2010 under the guise of being affiliated with UA1 and UA1’s associates. MOHAMUD and UCE1 ultimately agreed to meet in Portland on July 30,2010.

But a filing submitted yesterday shows that the Oregon State Police got a report on him in November 2009, after which an FBI agent named Bill Smith started contacting Mohamud.

As noted above, the government seeks to characterize a November 2009 interaction withMohamed as “an unrelated matter.” Resp. at 17. While the direct contact with Mohamed appeared to involve only the Oregon State Police (OSP), the FBI was clearly involved behind the scene. As the government has only provided minimal discovery related to the FBI’s involvement, with much of it redacted, Mohamed cannot assess the extent of the information the FBI gathered andsubsequently used in crafting its sting operation.

What the discovery does show is that the OSP immediately notified the FBI upon receiving a complaint about Mohamed, despite the fact that the substance of the report would ordinarily not result in FBI involvement. Although the redactions in the FBI report prevent the defense from understanding the full scope of the FBI’s role, it appears that agents met with OSP officers prior to contact with Mohamed and were involved with the subsequent interview. OSP then requested consent to image Mohamed’s computer, which was provided to an FBI analyst within hours. Seven days later, agent Bill Smith began contacting Mohamed and soliciting his participation in violence against the West. A short time later, the FBI analyst copied specific information from Mohamed’scomputer and provided it to a fellow agent. The analyst did not write a report of his actions until ayear later.

Other filings make it clear that the OSP polygraphed Mohamud at this point and suggests the search of his computer was consensual.

At first, the government didn’t admit that “Bill Smith” worked for the government (and it remains unclear who he works for). Only after the defense confronted them with that fact did they concede he was, but they claimed these earlier contacts have no connection to this case.

The discovery provided up to [the discovery deadline of February 15] and after included no indication that Bill Smith was a government agent. The government must possess the paperwork and reports that are necessarily generated by a government agent who contacts a citizen for such investigative purposes. If not for fortunate defense work, this exculpatory fact would have continued to be suppressed. It was only by backtracking through voluminous emails, and clearing out hundreds of lines of distracting code, that the defense was able to understand Bill Smith’s apparent connection to the government. Once confronted with the defense conclusions,the government admitted Bill Smith acted as a government agent. However, the conscious determination by the agency that Bill Smith should not be disclosed to the defense as an agent,purportedly because the government does not believe the information is helpful to the defense,establishes that the government alone should not be permitted to determine what is exculpatory without this Court’s supervision and instruction.

While the government claims this contact was discontinued in May 2010 (a month before the contact they claim started this investigation), Mohamud continued to email “Smith” until August 2010.

Bill Smith had e-mail contact with defendant beginning in late 2009 and continuing through May 2010. The contact with Smith did not relate to the facts of this case, and was discontinued by the government. Defendant, however, on his own continued to contact Smith through August 2010, after the government had ceased contact with him, by forwarding Smith e-mails, including one that supported violent jihad.

The fact that the government delayed admission of these earlier contacts also means the government has not disclosed the extent to which this earlier contact was used to tailor conversations with Mohamud.

[T]he undercover agents clearly used information from surveillance activities in approaching Mohamed. One obvious example is that agent Bill Smith attempted to ingratiate himself with Mohamed by recommending an online publication based on the government’s belief that Mohamed had connections to the publication.

While it appears that Mohamud was under surveillance before the first contact with the OSP (the complaint cites some emails he had with someone in Yemen August 2009), the earlier contact raises a whole bunch of questions about what led the government to pretend to follow-up on his emails in June 2010.

OPR Report Timeline

In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

Hassan Ghul Timeline

The known dates pertaining to Hassan Ghul’s capture and subsequent OLC memos authorizing his torture. The interesting things about this timeline are:

  • The Abu Ghraib scandal and IG Report come after they’ve detained Ghul but before they start torturing him in earnest
  • The claims to what Ghul knew changed over time
  • The approvals for his torture take place after Tenet is gone but before Goss arrives
  • Between the Cheney briefing of the Gang of Four, the CIA lie to HPSCI about torture, and Rockefeller’s requests for CIA IG materials, BushCo really was under pressure from Congress
  • Two documents to prove efficacy were created during the drafting of the Bradbury memos–but they don’t appear to claim Ghul’s torture was useful

March 16, 2003: Detainee testifies that Ghul took intended 9/11 participant, Mushabib al Hamlan, to Abu Zubaydah guest house in March 2000

January 19, 2004: General Sanchez requests investigation of Abu Ghraib abuse

January 22 or 23, 2004: Hassan Ghul detained by Kurds

January 31, 2004: Taguba appointed to conduct investigation

February 2 to 29, 2004: Taguba’s team investigating in Iraq

February 21, 2004: Directorate of Intelligence document, "US Efforts Grinding Down al-Qa’ida," says Ghul was captured while on a mission "to establish contact" with Zarqawi

February 24, 2004: Tenet mentions Ghul–along with top al Qaeda members–in hearing before SSCI

March 9, 2004: Taguba submits report

March 12, 2004: Letter to Goldsmith (possibly in support of GC opinion) claims Ghul "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents," and says CIA suspected Ghul of playing an active part in planning attacks against United States forces 

March 18, 2004: Jack Goldsmith concludes non-Iraqi members of al-Qaeda not "protected persons" under Geneva Convention

March 19, 2004: Jack Goldsmith drafts memo finding that US can remove some people of Iraq

April 28, 2004: Hamdi and Padilla argued before SCOTUS; Paul Clement assures the Court that we don’t torture; 60 Minutes breaks Abu Ghraib story and proves he’s wrong

May 7, 2004: CIA IG report finds torture program cruel and inhuman

June 3, 2004: Tenet announces resignation–seeks explicit approval of torture

June 15, 2004:Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 17, 2004:Jack Goldsmith announces his resignation.

July 2004: Scott Muller resigns as General Counsel of CIA

July 11, 2004: Tenet resignation effective

July 20, 2004: CIA requests new legal advice from OLC (13 page letter)

July 22, 2004: Ashcroft confirms to Acting DCI (McLaughlin?) that all techniques except waterboarding legal under CAT

July 23, 2004: Muhammad Naeem Noor Khan arrested by Pakistani authorities

July 25, 2004: Capture of Ahmed Khalifan Ghailani

July 26, 2004: DNC begins

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level, announces surveillance of financial institutions, though reports are years old; NYT publishes Khan’s name

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on "pre-election" threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting "at which elements of the pre-election threat were discussed"

December 30, 2004: Levin torture memo and CIA Background Paper on Combined Techniques

January 5, 2005: CIA faxes Daniel Levin a new definition of High Value Detainee

February 2005: Senior CIA official provides incomplete account of CIA treatment of detainees at HPSCI briefing

March 2, 2005: Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [redacted], DCI Counterterrorist Center, Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques created

March 7 2005: CIA briefs Roberts and Rockefeller on torture

March 8, 2005: CIA briefs Roberts, Rockefeller, Goss, and Harman on torture

April 8, 2005: May 10, 2005 Bradbury memos drafted

April 15, 2005: Fax from [redacted], DCI Counterterrorist Center, Briefing Notes on the Value of Detainee Reporting created

April 20, 2005: DOJ announces Comey’s resignation

April 22, 2005: CIA sends Steven Bradbury fax on combining waterboarding and sleep deprivation

May 2005: Jello Jay Rockefeller writes to CIA IG requesting terror tape investigation materials; he doesn’t receive them

May 10, 2005: "Techniques memo" apparently addresses Ghul specifically; "Combined memo" may address Ghul as well

May 30, 2005: "CAT memo" describes Ghul’s torture and describes him as someone typical of the "High Value Detainee" subject to torture

July 9, 2005: Date of letter, purportedly from al-Zawahiri to al-Zarqawi

October 11, 2005: Release date of Zawahiri-Zarqawi letter

June 29, 2006: SCOTUS rules in Hamdan that Geneva Convention applies to al Qaeda detainees

Late summer 2006: Ghul shipped to prison in Pakistan

September 6, 2006: Other High Value Detainees shipped to Gitmo

January 2007: Ghul moved from Pakistani prison, whereabouts unknown

The April 22, 2005 Fax on Torture

I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Ullyot told Comey the memos would be sent to the White House (and perhaps the CIA) on Friday April 28, 2005. But we know the memos weren’t finalized until May 10, 2005–almost two weeks later.

The April 22 Fax Reintroduces Waterboarding into Combined Techniques

There are a number of things the April 22 Fax appears to have done, which I’ll get into below. But the really critical detail is this one, from the Combined memo:

The Background Paper does not include any discussion of the waterboard; however, you have separately provided to us a description of how the waterboard may be used in combination with other techniques, particularly dietary manipulation and sleep deprivation. See Fax for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [redacted], Assistant General Counsel, CIA, at 3-4 (April 22, 2005)


You have advised us that in those limited cases where the waterboard would be used, it would be used only in direct combination with two other techniques, dietary manipulation and sleep deprivation. [my emphasis]

In other words, the Background Paper that was tied to the December 2004 Levin memo, didn’t mention waterboarding at all (but that didn’t stop the NYT from declaring that Levin had found waterboarding to be legal). Then Levin left and Bradbury picked up the memos. Even in that form, Philbin apparently had concerns about the memo. 

But then, after Comey resigned on or before April 20, and on the same day Comey and Philbin tried to fix the memo on April 22, the CIA sent over a fax with in-depth details of using diet manipulation and sleep deprivation with waterboarding, just in time for Bradbury to finish up the memo. The April 22 fax, then, was the primary background for discussion of using waterboarding in conjunction with sleep deprivation, but Bradbury didn’t even get it until at least halfway through the process. And for some reason, that late in the process, they felt they needed such a document. 

The Other Uses of the April 22 Fax

That’s not the only thing cited from the April 22 fax in these memos. The Techniques memo uses the memo to ally fears of edema in sleep deprivation.

Specifically, you have informed us that on three occasions early in the program, the interrogation team and the attendant medical officers identified the potential for unacceptable edema in the lower limbs of detainees undergoing standing sleep deprivation, and in order to permit the limbs to recover without impairing interrogation requirements, the subjects underwent horizontal sleep deprivation. 

The Combination memo also appears to cite the fax for its number–at least 25–of detainees who had been subjected to sleep deprivation.

The Combined memo also appears to borrow the analysis of the Background Paper–which didn’t mention the waterboard–to apply it to interrogations including the waterboarding described in the April 22 fax. Most troubling, the Combined memo appears to use the Background paper analysis on interrogators telling detainees they would "do what it takes" to get information. Of course, the statement means one thing in isolation from waterboarding (as it was treated in the Background paper), but quite another when subjecting someone to controlled drowning. Yet by using the Background Paper (which didn’t consider the waterboard) for a memo treating the waterboard, the Combined memo can say all of the following in the section on severe mental pain or suffering:

A detainee subjected to the waterboard experiences a sensation of drowning, which arguably qualifies as a "threat of imminent death."


The Background Paper raises one other issue about "severe mental pain or suffering." According to the Background Paper, the interrogators may tell detainees that they "will do what it takes to get important information." … Conceivably, a detainee might understand such a statement as a threat … We doubt this statement is sufficiently specific to qualify as a predicate act under section 2340(2).


Although it may raise a question, we do not believe that, under the careful limitations and monitoring in place, the combined use outlined in the Background Paper, together with a statement of this kind, would violate the statute.

The memo gives the appearance of having analyzed whether saying "we will do what it takes to get the information" in conjunction with controlled drowning could be considered a threat. But the memo in fact falls far short of that. 

What We Know from This

Mind you, we don’t know what this means–aside from the fact that a key document for the Combined memo’s treatment of waterboarding was not even written until well into the process. That doesn’t tell us anything about when the discussion about waterboarding itself was introduced into the process–or the memos. For that we’d need drafts of the memos themselves (maybe Gonzales would be willing to share his?)

There’s something screwy with the timeline of these memos–we just don’t know what it means yet. Though I suspect it will feature in the OPR report–if and when they ever release it. 

Vaughn Walker’s Chess Game: Sue the Telecoms Part One

In two earlier posts I laid out where Vaughn Walker seems to be going with the warrantless wiretapping cases. In this post, I’m going to consider his suggestion–made in his ruling rejecting a challenge to retroactive immunity–that the plaintiffs could sue the telecoms for activities after January 17, 2007 (note, Walker said January 7, but it’s almost certain he meant January 17).

Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of
plaintiffs’ opposition to motion of the United States” to dismiss. Doc #627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA warrantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’” Doc #627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master
consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-morestringent pleading standards applicable in federal courts (see, e g, Ashcroft v Iqbal, ___ US ___, 129 S Ct 1937 (2009)), to allege causes of action not affected by the Attorney General’s successful invocation of section 802’s immunity.

EFF had submitted the recent Lichtblau and Risen article in support of their argument that they could sue for past abuses, and in response, Walker said, "Well, why don’t you sue for more recent abuses?" 

Is Walker serious? Does he really think there is means to do that?

The Recent History of the Wiretap Program and the Immunities

Let’s start by looking at the recent history of the mass wiretap program along with the immunities offered by Congress in 2007 and 2008.

January 10, 2007: FISA Court issues first order covering the program

January 17, 2007: Alberto Gonzales informs Congress FISA Court will now approve wiretap program

May 2007: FISA Court judge rejects Administration’s order for a basket warrant

May 15, 2007, 10 AM: Jim Comey testifies before Senate Judiciary Committee, describes Hospital confrontation

May 15, 2007, 10 AM: US Intelligence meets to discuss collecting more intelligence in case of kidnapped soldiers in Iraq

May 15, 2007, 12:53 PM: US Intelligence decides to wiretap, debates "novel and complicated issues" relating to wiretap

May 15, 2007, ~5 PM: US Intelligence seeks Alberto Gonzales approval for basket warrant

May 15, 2007, 7:38 PM: Wiretap begins 

August 5, 2007: Protect America Act becomes law; it authorizes:

Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that–

(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

(2) the acquisition does not constitute electronic surveillance;

(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and

(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.

It provides for this cooperation from telecoms:

(e) With respect to an authorization of an acquisition under section 105B, the Director of National Intelligence and Attorney General may direct a person to–

(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target; and

(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such person wishes to maintain.

It includes this immunity for telecoms:

Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.

February 18, 2008: PAA expires; orders under PAA may extend for one year

July 10, 2008: FISA Amendments Act becomes law; it authorizes:

(a) Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(b) Limitations- An acquisition authorized under subsection (a)–

(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

It provides for this cooperation from telecoms:

(h) Directives and Judicial Review of Directives-

(1) AUTHORITY- With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to–

(A) immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

It includes this immunity for telecoms:

(a) Requirement for Certification- Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that–

(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;

(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;

(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was–

(A) in connection with an intelligence activity involving communications that was–

(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was–

(i) authorized by the President; and

(ii) determined to be lawful; or

(5) the person did not provide the alleged assistance.

(b) Judicial Review-

(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall–

(1) review such certification and the supplemental materials in camera and ex parte; and

(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

How to Sue

The timeline shows there are four different categories of activities for which the telecoms might be sued for this program:

  • Surveillance that took place between January 17 and August 5, 2007 that violates FISA or ECPA (Note, Walker probably got the date wrong when he said EFF might sue for stuff after the retroactive immunity period ended on January 7, 2007–he almost certainly meant January 17 [corrected]) 
  • Surveillance that took place between August 5, 2007 and July 10, 2008 that does not comply with PAA 
  • Surveillance that took place after July 10, 2008 that does not comply with FAA
  • Surveillance that took place in one of the transition periods, particularly after PAA expired on February 18, 2008 but before FAA went into effect on July 10, 2008

January 17, 2007 to August 5, 2007

This is by far the most ripe period for suit for two reasons. First, this is a window in which telecoms have neither the retroactive immunity offered by FAA (which extends only to January 17, 2007) nor the immunity included in PAA and FAA for the activities authorized in those laws. Plus, we know there was a period around May 2007 in which the FISA Court did not immediately approve the basket warrant application submitted by the Bush Administration.

The key point to keep in mind, of course, is that a big chunk of the EFF suit against the telecoms pertains to Wiretap and Electronic Communication Privacy Act violations, not just FISA (go here for the relevant excerpts of the law). So the big question for this period is how the government required the telecoms to vacuum and data mine call data? If Walker believes the vacuumed data constitutes "content," then ECPA might require the collection to be tied to a criminal investigation, which it would not be. If Walker believes the vacuumed data is simply meta-data, then it might be enough to have an administrative subpoena (but this would have to be reported to Congress). And I’m not sure it is clear, yet, whether the metadata from emails (which is a lot of what we’re talking about) equates to metadata from phone calls. 

In other words, the surveillance that took place after immunity expired but before PAA and FAA legalized the broader surveillance program may be subject to suit under ECPA.

August 5, 2007 to July 10, 2008

Let’s build backwards from the immunity offered to telecoms to see whether there’s any exposure to liability during the period covered by PAA, because the big question (it seems to me) is whether or not the purported focus on foreign intelligence leaves room for suit. The telecoms get immunity "for providing any information, facilities, or assistance in accordance with a directive under this section." "Any information, facilities, or assistance" is pretty broad and may well cover the data mining of US person data culled directly from the networks, particularly since the authorization itself extends to requiring telecoms to give, "all information, facilities, and assistance necessary to accomplish the acquisition." I’m betting the government would argue that they needed everyone’s data to get the proper targeting of the ultimate targets of the wiretap. 

The question, though, is whether or not restriction against electronic surveillance would moot that? Or whether the ultimate focus on foreign intelligence would lead Judge Walker to narrowly interpret the phrase "any information, facilities, or assistance necessary to accomplish the acquisition?"

And it’s actually worse than that. With FAA, Congress made the immunity for PAA surveillance even broader, described as, "any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007." Again, there’s the question of whether the collection of US person data could be considered part of a directive under PAA that purportedly may target only foreign intelligence.

July 10, 2008 to present

The immunity for telecoms built into FAA is parallel to that under PAA–it extends immunity "for providing any information, facilities, or assistance in accordance with a directive under this section." There are just a few differences. First, the authorization in FAA more specifically prohibits the intentional targeting of US persons–though the use of "intentional" throughout is a pretty big loophole. And, more interestingly, the section requires surveillance "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." So there’s the possibility of challenging telecom immunity because the surveillance did not comply with the Fourth Amendment. I’ll explain why that might be important in a moment.

There’s one other new wrinkle with FAA, one that applies to all three of these periods. In the clause that also gives the Attorney General instructions for certifying the telecoms to quality for retroactive immunity, FAA gives the AG instructions for certifying that telecoms qualify for immunity under PAA or FAA. The review process is the same–the same crappy ex parte review that Judge Walker just upheld last week. 

With one difference.

For retroactive immunity, all Walker gets to review is whether the certifications given to the telecoms said the activity was authorized by the President and was legal (whether or not it was, in fact, legal). Walker just gets to review whether the certifications say what they are reported to say.

But for other immunity certifications, it seems that Walker will be able to review the certifications for whether or not they are supported by "substantial evidence." That is, Walker appears to have more extensive means to review whether the certifications actually comply with FAA, PAA, the Wiretap Act, or 18 USC270(b), which reads:

(b) Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may— (1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

This is an important difference from the retroactive immunity, it seems to me, because Walker has more leeway to actualy rule on the legal comprehensiveness of those certifications, and not just on whether the certifications say what we know them to say. Plus, this part of FAA means that the Administration can’t invoke state secrets to prevent Walker’s review.

Mind you, Walker couldn’t actually tell us what he finds in his review, aside from whether or not he dismisses a suit. But again, that’s better than where we are with al-Haramain, in which the government claims Walker can’t even tell us whether the suit gets to go forward.

It’s still Kafkaesque. But it’s a better type of Kafkaesque.

I’m going to go ahead and post this, so the lawyers in the crowd can start telling me what a futile pursuit this would be. In the meantime, I’m going to do a last post on some reasons EFF might be able to make a claim.

The Terrorism Intelligence and the Briefing Schedule

I suggested yesterday that one of the explanations for the CIA’s unreliable record of briefings on torture and terrorism in 2002 and 2003 might reflect an attempt to hide certain information.

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence? 

While we don’t know the full schedule of briefings on Iraq intelligence, the schedule of intelligence documents pertaining to Iraqi ties to terrorism suggests that might be possible. Significantly, according to Bob Graham and Nancy Pelosi, they were not briefed that Abu Zubaydah had been tortured before the NIE appeared integrating his August 2002 interrogation reports. And Jane Harman was not informed he had been tortured until after the last major report on Iraqi links to terrorism came out in January 2003.

Here are the intelligence documents mentioned in the SSCI Report on Iraq, interspersed with the torture briefings.

September 21, 2001: Document written by Cofer Black (then Director of CounterTerrorism) and Near East and South Asia Directorate. Distributed only to President’s Daily Brief principals, and not revealed to Congress until June 2004. The document is described as "taking a ‘Q&A’ approach to the issue of Iraq’s possible links" to 9/11.

October 2001:  NESA document discussing Iraq’s overall ties to terrorism.CIA refused to share the document with SSCI, explaining its dissemination was limited to PDB readers.

December 18, 2001: Ibn Sheikh al-Libi captured.

February 22, 2002: First report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

March 28, 2002: Abu Zubaydah captured.

June 21, 2002, Iraq and al-Qaida: Interpreting a Murky Relationship: Ostensibly a joint project between CTC and NESA, the report was a subject of a CIA Ombud invsetigation into a complaint from a NESA analyst alleging that the document did not adequately reflect the views of NESA. The document was intentionally expansive, as described by Jamie Miscik: "If you were going to stretch to the maximum the evidence you had, what could you come up with?"

July 26, 2002: OLC orally authorized waterboarding.

July 31, 2002: Second report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

Summer 2002, Dougie Feith’s Propaganda: This led to a series of briefings in August 2002 apparently designed to reinsert previously discredited claims into the CIA stream of intelligence. In particular, George Tenet agreed to hold up the production of Iraqi Support for Terrorism until CIA could attend a meeting with Feith’s people; the meeting took place on August 20, 2002. Feith’s briefers also gave a presentation to Scooter Libby and John Hannah on September 16, 2002, in which they openly criticized CIA reporting on this topic.

September 4, 2002: Pelosi and Goss briefed on torture. Apparently not told that waterboarding had already been used with Abu Zubaydah.

September 19, 2002, Iraqi Support for Terrorism: This document appears to be the source of much of the content of the Iraq NIE pertaining to Iraqi ties to Al Qaeda specifically and terrorism in general, but Congress did not receive the document itself until October 2003. Much of the intelligence relies on foreign intelligence service sources and much of it focuses on Iraqi ties to Palestinian terrorist groups (which suggests it’s likely that Israeli and Jordanian intelligence were critical to the document). 

September 27, 2002: Graham and Shelby briefed on interrogations. Graham maintains they were not briefed on torture.

October 1, 2002: Iraq NIE.

January 2003, Iraqi Support for Terrorism: This document was the "final major terrorism analysis produced prior" to the start of the Iraq War. While the document was significantly the same as the September 19, 2002 document (which had not been provided to Congress), it omitted discussion of key sources, including one that appears to be an Iraqi National Congress [Chalabi] source and others that describe what foreign service had provided much of the intelligence. It also integrated intelligence from al Qaeda detainees collected "between September 2002 and January 2003." With regard to Iraqi ties to al Qaeda, the document says "our knowledge of Iraq’s ties to terrorism is evolving [redacted], suggesting some influence from al Qaeda detainee interrogations. It admits to the inconsistency of the reports coming from "al-Qaida detainee debriefings," stating, "The limited reporting available to analysts on al-Qaida’s attitude toward cooperating with the Iraqi regime was contradictory." The report appears to incorporate four interrogation reports from Abu Zubaydah (which say there wasn’t much of relationship between Iraq and al-Qaeda though did say Zarqawi and others had good relationships with Iraq), and al-Libi (which in the Iraq report is redacted, but we know would say involved a training relationship in Iraq). [For more on the al Qaeda intell that shows in this report see HuffPo and TPMM.] 

February 4, 2003: Pat Roberts briefed on torture, including on Abu Zubaydah’s and al-Nashiri’s waterboarding.

February 5, 2003: Porter Goss and Jane Harman briefed on torture, including on Abu Zubaydah’s and al-Nashiri’s waterboarding.

Ferbuary 5, 2003: Colin Powell’s address to the UN, integrates already-discredited intelligence from Ibn Sheikh al-Libi on alleged ties between Iraq and al Qaeda.

March 1, 2003: Capture of KSM. In response to SSCI questions asked about KSM, CIA admitted KSM "maintained that he was unaware of any collaborative relationship between al-Qaida and the former Iraqi regime, citing ideological disagreements as an impediment to closer ties. In addition, he was unable to corroborate reports that al-Qaida associate Abu Mus’ab al-Zarqawi had traveled to Iraq to obtain medical treatment."

March 19, 2003: Start of Iraq War.

This timeline shows several things.

First, there were two pieces of intelligence used to get us into war that were collected using torture: al-Libi’s claims of training ties between Iraq and al Qaeda, and Abu Zubaydah’s claims of close relations between Zarqawi (and others) and Iraq. Further, given that "the questions regarding al-Qaida’s ties to the Iraqi regime were among the first presented to senior al-Qaida operational planner Khalid Shaikh Muhammad following his capture, there is a possibility KSM had told interrogators he knew of no ties between Iraq and al Qaeda before the invasion. But that was not communicated to Congress. (Note: Dick Cheney tried to make expansive claims of such ties on March 16, but was prevented, so it’s possible he learned of KSM’s intelligence before the war started.)  Curiously, the Iraq report makes no mention of intelligence from Ramzi bin al-Shibh, who had been captured in September 2002 (though neither does the 9/11 Report in its treatment of potential ties). In other words, of the potentially known intelligence prior to the war, two pieces got communicated to Congress, that from al-Libi and that from Zubaydah, whereas any refutation (if it had been collected from KSM yet) was not communicated to Congress.

Al-Lbi’s claims of an Iraq-al Qaeda tie was definitely coerced using torture. Given the timing, Zubaydah’s claim may have come from his August waterboarding or it may have come later, when treatment of him grew less harsh.

Also note: the SSCI Iraq Report, at least, overstates Zubaydah’s role–calling him a "senior coordinator"–and underplays KSM’s role–claiming he had a "limited role in the administration of al-Qaida" (the descriptions of al-Libi are completely redacted). While that’s the SSCI Report, and not the underlying intelligence, it may suggest the intelligence community overstated the reliability of Abu Zubaydah by continuing to overstate his role in Al Qaeda long after they discovered their understanding of his seniority was incorrect.

Now, one thing we’ve heard nothing about is whether–and when–Congress got briefed on intelligence from Ibn Sheikh al-Libi’s capture and torture, though it would have been part of CIA’s role in capturing and interrogating al Qaeda pursuant to the September 17, 2001 Memorandum of Notification, and as part of what was then a covert op, should have been briefed to Congress. But Pelosi and Graham insist they were not breifed on the torture of Abu Zubaydah in fall 2002, at a time when they were both trying to challenge the intelligence in the Iraq NIE. If Pelosi’s and Graham’s accounts are correct, then (and assuming no one got briefed on al-Libi’s torture before the war), it means the only chance a Democrat had to question whether torture contributed to inaccurate intelligence used to make the case for war was Jane Harman’s briefing on February 5, 2003. And that briefing happened virtually simultaneously with Colin Powell’s speech at the UN, which did rely heavily on al-Libi’s claims. 

Nancy Pelosi and Bob Graham are pointing to a connection between the bad Iraq intelligence and the inaccurate claims about the torture briefings. One thing appears to be true: given the schedule of briefings–particularly CIA’s failure to reveal they were already using torture in those September 2002 briefings–it limited the opportunities for Democrats to question whether the Bush Administration was using torture-induced intelligence to make their case for the Iraq War. 

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Originally Posted @ https://www.emptywheel.net/timeline/