Bush Turned His EO on Classified Information into Pixie Dust, Too

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Yesterday, I expanded on the reasons why the OLC opinion holding that Presidents aren’t bound by their own Executive Orders is so scary. It means that every Executive Order may have been turned to Pixie Dust by the President–and we’d never know it.

Unless, of course, there were persistent, unpunished violations of what we believed to be the Executive Order. If there were an Executive Order that the Executive branch was publicly flouting, we might assume that Bush had turned that EO, too, into Pixie Dust.

And that is apparently what happened with EO 12958. It governs the treatment of classified information: what can be classified, when it should be declassified, what records one should keep of classification and declassification, and who can declassify classified information, and how classified information should be protected.

It’s an EO that Vice President Cheney has had epic difficulties with.

In 2003, for example, Vice President Cheney (and the President’s Foreign Intelligence Advisory Board) stopped providing the National Archives with data describing his office’s classification and declassification activities. No explanation, he just stopped doing so.

Then, in 2004, the National Archives prepared to do an inspection of OVP, as it is mandated to do. Yet OVP refused to let the NA conduct the inspection.

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

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

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When All Executive Orders Turn to Pixie Dust

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I promised to respond to Marty Lederman’s response to Sheldon Whitehouse’s speech today; though I should admit right away that the Libby non-appeal has changed my approach dramatically. So you won’t see everything today.

Marty assesses the three propositions that Whitehouse has had declassified and is unimpressed.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that’s what he did yesterday. He expressed incredulity about all three. But there’s a reason the Administration gave him the green light on those three matters — because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos — such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 — but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective. [my emphasis]

Marty is assessing these, of course, as a former OLC lawyer. And he finds, for the most part, the three propositions are constitutional. Let me be clear that, as a non-lawyer, I’m assessing the propositions by what they suggest about Bush’s activities, which is part of the difference between Marty’s calm and my outrage. I’m going to come back and look at the two propositions Marty is least excited about (numbers 2 and 3 in Senator Whitehouse’s list). For now, though, let me jump ahead to the one that both Marty and I were most troubled by: Read more →

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Seeing a Catfight Where There Is None

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Spencer Ackerman has a more complete version of Nancy Pelosi’s statement about when she was briefed on torture techniques.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

And then he makes what I consider a gross misreading of the statement.

One: Pelosi isn’t saying that she knew how detainees were interrogated. She’s saying she was told that all techniques used in those interrogations were considered legal. So did she know what those techniques were, and what they entailed? We’ll find out, or get stonewalled trying.

Two: Never mind the brief mention of Jane Harman’s protest. Pelosi just threw Harman under the bus. It’s no secret that the two Californians don’t get along. But she didn’t need to put the blame on her committee successor in her statement on this controversy.

Let’s take the key clauses from Nancy’s statement. I’ve bolded them up there in the statement so it’s crystal clear that they’re direct quotes, written in plain language.

  1. I [Nancy Pelosi] was briefed on interrogation techniques
  2. Jane Harman, was briefed more extensively and advised the techniques had in fact been employed
  3. Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred

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Michael Mukasey, the Shortest Honeymoon Ever

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Hoo boy, Mukasey’s having a heck of a honeymoon, isn’t he? In addition to running the joint CIA-DOJ investigation of the destroyed terror tapes, now Feingold (on both SJC and SSCI) wants him to answer the questions he refused to answer in his nomination hearings.

Dear Attorney General Mukasey:

During the hearing on your nomination to be Attorney General and in your answers to questions submitted for the record, you repeatedly refused to answer questions related to interrogation techniques on the grounds that you had not yet been briefed on the CIA’s interrogation and detention program. I was disappointed with these responses. Familiarity with the CIA program should have been irrelevant to a legal opinion about practices such as waterboarding, which have been employed by dictatorships for generations and historically condemned by our own government.

Nonetheless, now that you have been sworn in as our nation’s Attorney General and presumably have been briefed on the program, I urge you to provide your views on its legality to Congress at the earliest possible date. As a member of the Senate Intelligence and Judiciary Committees, I believe that a full and informed exchange between yourself and Congress is critically important if our intelligence activities are to be conducted consistent with our laws and Constitution and subject to appropriate congressional oversight. Such transparency would also be long overdue, given the refusal of the Department of Justice to provide to Congress any legal opinions on the program.

I oppose any interrogation techniques not authorized by the Army Field Manual, as do majorities of the Senate and House Intelligence Committees. I do not believe that their use is legally or morally defensible or that it makes our nation safer. It is my hope that, under your leadership, the Department of Justice will take a fresh look at the CIA’s program, and that you will urge the President not to veto legislation that would end the use of so-called "alternative interrogation techniques." I request that you provide current and any past Department legal analyses to Congress, and that you provide your views on the program to Congress at the earliest possible date.

That said, I think this is good politics. It takes the pressure caused by the news of the torture tape destruction and ratchets it up another level. All, hopefully, to force Bush to accept restrictions against torture.

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Nancy Pelosi: Congressional Leaders Do Expect the Spanish Inquisition

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Ximinez: NOBODY expects the Spanish Inquisition! Our chief weapon is surprise…surprise and fear…fear and surprise…. Our two weapons are fear and surprise…and ruthless efficiency…. Our *three* weapons are fear, surprise, and ruthless efficiency…and an almost fanatical devotion to the Pope…. Our *four*…no… *Amongst* our weapons…. Amongst our weaponry…are such elements as fear, surprise…. I’ll come in again.

The WaPo is out today confirming something Mary suspected: Nancy Pelosi was briefed on–and raised no objection to–our methods of torture.

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

[snip]

Pelosi declined to comment directly on her reaction to the classified briefings. But a congressional source familiar with Pelosi’s position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage — they had been designed and cleared with agency lawyers but not yet put in practice — and acknowledged that Pelosi did not raise objections at the time.

Meanwhile, it’s time for me to, once again, applaud Jane Harman for doing the right thing. She was apparently the only known Congressperson who raised a formal objection to the practices. Read more →

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Congress and the Torture Tapes

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First, let me start with some congratulations. For once, Jane Harman appears to have been on the right side of an issue, in this case warning the CIA (in writing) not to destroy the torture tapes. She’s now demanding that Michael Hayden declassify that letter so we can all see it.

This matter must be promptly and fully investigated and I call for my letter of February 2003, which was never responded to and has been in the CIA’s files ever since, to be declassified.

Congratulations Jane. Glad to have you on the side of light and goodness for the moment.

Harman’s then-counterpart in the Senate (Harman is no longer in HPSCI, which is why she didn’t learn of the tapes when HPSCI did), Jello Jay Rockefeller, appears to have followed the CIA’s script they gave him–until he stopped to think or someone did so for him. On Thursday, as this news was coming out, Jello Jay released the following statement.

While we were provided with very limited information about the existence of the tapes, we were not consulted on their usage nor the decision to destroy the tapes. And, we did not learn until much later, November 2006 — 2 months after the full committee was briefed on the program — that the tapes had in fact been destroyed in 2005.

And then, yesterday he revealed that that story was what the CIA had told him, not what he knew or believed to be true or, more importantly, what the record proved.

Last night, the CIA informed me that it believes that the leadership of the Senate Intelligence Committee was told of the decision to destroy the tapes in February 2003 but was not told of their actual destruction until a closed committee hearing held in November 2006.

The committee has located no record of either being informed of the 2003 CIA decision or being notified late last year of the tapes having being destroyed. A review of the November 2006 hearing transcript finds no mention of tapes being destroyed.

No wonder Jello Jay always touts the CIA party line–his first instinct is to read from the script they give him.

Meanwhile, Crazy Pete Hoekstra, current Ranking Member of HPSCI, sounds remarkably like Dick Durbin. Here’s Durbin: Read more →

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Was Ramzi Bin al-Shibh the Second Al Qaeda Detainee?

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We now know that Harriet Miers apparently knew about the torture tape destruction, though she counseled against it. And we know who–purportedly–ordered their destruction: Jose Rodriguez, then Deputy Director of CIA for Clandestine Operations. But you know what we don’t yet know?

The identity of the second top Al Qaeda figure whose torture tapes were destroyed. Update: now we do: from the NYT,

The tapes, which showed severe interrogation methods against two operatives from Al Qaeda, Abu Zubaydah and Abd al-Rahim al-Nashiri,

(h/t rfw) Which, since it’s coming from a reliable journalist (Lichtblau) I guess means the rest of this bloviating is pointless.

I’m going to make a wild-arsed guess the second detainee was Ramzi bin al-Shibh.

I say that, first of all, because the destruction of the tapes almost certainly was obstruction of justice for Moussaoui. ABC confirms that the tapes were destroyed in November 2005.

In 2002, the CIA videotaped the interrogations of two terror suspects, including top al Qaeda operative Abu Zubaydah. The tapes showed what the CIA calls "enhanced interrogation techniques," methods which critics call torture.

In February 2003, the CIA says it told the leaders of congressional intelligence committees about the tapes and that it planned to destroy them.

On Nov. 2, 2005, the Washington Post detailed the CIA’s secret prison program known as "black sites." It was November 2005 that the CIA destroyed the tapes. [my emphasis]

If it was November, it pretty much had to be obstruction of justice in Moussaoui’s case, because odds are very high they destroyed the tapes after Leonie Brinkema inquired whether the government had any tapes from the Al Qaeda detainees. From my timeline:

November 1, 2005: Dana Priest reveals the use of black sites in Europe.

November 3, 2005: Brinkema inquires whether govt has video or audio tapes of interrogations.

[snip]

November 14, 2005: Govt tells Brinkema it has no audio or video tapes.

In other words, there were only two days in November when they could have destroyed the tapes without it being clear obstruction of justice. Frankly, the only way they could have told the truth on the 14th is if they had already destroyed the tapes. And as good as Priest’s article was, I just don’t think that was enough to lead to the destruction of the tapes.

Now look at these earlier data points from the timeine:

January 2003: Leonie Brinkema grants Moussaoui right to interview Ramzi Bin-al-Shibh by video.

[snip]

September 10, 2003: Government refuses to let Moussaoui question Al Qaeda witnesses. Read more →

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Coming after John Yoo

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LS reminded me of an important point.

As soon as (or even before) Mukasey came in as AG, the OPR investigation into the legal opinions that justified the warrantless wiretapping was reopened. When it was reopened, Marty Lederman was skeptical that OPR would get very far:

According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")

[snip]

Thus, since John Yoo apparently was doing exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing.

But after an interesting discussion, he makes one caveat:

P.S. I should add that OPR might uncover information that demonstrates distinct ethical or other legal lapses — such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving; or evidence that OLC intentionally declined to seek the legal views of others within the Department because it knew that such views would undermine the office’s desired conclusions; or evidence that DOJ and others provided fraudulent misrepresentations to telecoomunications providers in order to induce their cooperation; or, of course, evidence that DOJ lawyers dissembled to the FISA Court. It would be entirely appropriate for OPR to investigate, report and condemn such conduct. I just don’t quite see the value in OPM evaluating the bona fides or "competence" of OLC’s legal advice.

What if, I wonder, OLC had entirely rewritten the Constitution? What if it was more than just saying (as Marty describes), "that the President has an article II authority to disregard FISA" and instead saying, "the President has an article II authority to interpret article II authority as he sees fit"? Or, as Sheldon Whitehouse described it: Read more →

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General Hayden Gets Mail

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Congressmen Conyers, Delahunt, Scott, and Nadler would like Michael Hayden to provide a detailed description of how and why torture tapes got destroyed. Here are the key questions:

3. Did the CIA notify the Department of Justice of its intention to destroy the tapes and if so, when? Did the CIA receive a legal opinion from the Department of Justice’s Office of Legal Counsel, or any other entity, relating to the destruction of the tapes? Please provide copies of any such written materials.

4. In light of the fact that the September 11 Commission and a federal court requested information regarding these types of materials, why did the CIA decide not to provide information to these two entities concerning the existence or possible and actual destruction of the tapes?

5. When the CIA provided information to Department of Justice lawyers in 2003 and 2005 with respect to the request of the court in the Moussaoui case for evidence taken from interrogations of CIA prisoners, as stated in the Times article, what information concerning the tapes was provided to Department lawyers?

I’m especially interested in question number 3. As I said earlier, I think one of the two most likely times for the destruction of the tape is between May 10 and May 30, 2005, when OLC was busy writing torture opinions to override existing restrictions on torture. In fact, I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal.

In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.

Anyway, things are getting interesting…

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Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

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Damn, I love me some Sheldon Whitehouse. He, like, actually knows the law. And he, like, is willing to actually read the stuff he is exercising oversight over.

Which is why this speech he gave today is so important (link to speech; here’s a link to video). Apparently, Whitehouse actually read the OLC opinions that justified the warrantless wiretap program and continue to justify the Administration’s wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here’s his description of what he found.

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

  1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
  2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
  3. The Department of Justice is bound by the President’s legal determinations. [my emphasis]

I noticed Whitehouse sniffing around the question of Executive Orders before. I thought (okay, hoped, really) that he was sniffing around 13292, which governs classification and declassification, including whether the Vice President can unilaterally declassify the identity of a CIA NOC. But it turns out he was sniffing around EO 12333, which governs Intelligence Activities (and though it’s not central to this discussion, here’s an amendment Bush made in 2004 to set up DNI).

Here’s what–according to Whitehouse, who after all ought to know–Bush believes about whether or not he has to follow EO 12333, an Executive Order signed by Saint Reagan. Read more →

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