Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?
By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.
[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).
Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.
The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program
The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.
The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.
Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.
The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.
The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,
OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.
I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).
The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.
Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).
The NSA is part of the military .
The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”
But the proposition for which that memo is cited* in footnote 10 of the memo is:
Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.
So, what does this mean? Depends on how you define “domestic military operations”, don’t it?
I argue the 10/23/01 memo was the lawyerly justification for:
(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).All of those things are military operations.
The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program
But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.
White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.
"TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.
More credibly, there’s Eric Lichtblau’s reporting, which I’ve examined here.
Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.
At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”
Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.
At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.
The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.
The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.
In other words, Lichtblau says the program had the following authorization:
October 2001: No OLC review
Late 2001 to Early 2002: John Yoo opinion
[Likely March to April] 2004: Revised OLC opinion
Finally, when DOJ wrote a White Paper explaining its legal justification in January 2006, it relied almost exclusively on the President’s Article II power and on the Authorization to Use Military Force. Of note, the White Paper dismissed concerns about the Fourth Amendment by stating that this surveillance pertained to foreign intelligence (an argument that seems to be the precise opposite of the "domestic military operations" argument in the October 23, 2001 opinion), and that it was reasonable.
In United States v. United States District Court, 407 U.S. 297 (1972) (the “Keith” case), the Supreme Court concluded that the Fourth Amendment’s warrant requirement applies to investigations of wholly domestic threats to security—such as domestic political violence and other crimes. But the Court in the Keith case made clear that it was not addressing the President’s authority to conduct foreign intelligence surveillance without a warrant and that it was expressly reserving that question: “[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”
[snip]
After Keith, each of the three courts of appeals that have squarely considered the question have concluded—expressly taking the Supreme Court’s decision into account—that the President has inherent authority to conduct warrantless surveillance in the foreign intelligence context.
[snip]
In sum, the NSA activities are consistent with the Fourth Amendment because the warrant requirement does not apply in these circumstances, which involve both “special needs” beyond the need for ordinary law enforcement and the inherent authority of the President to conduct warrantless electronic surveillance to obtain foreign intelligence to protect our Nation from foreign armed attack. The touchstone of the Fourth Amendment is reasonableness, and the NSA activities are certainly reasonable, particularly taking into account the nature of the threat the Nation faces.
Of course, that doesn’t rule out the possibility that DOJ has simply changed its rationale for the program; we know, for example, that it has alternately used and not used the AUMF as part of its justification, so it’s possible that its evolving justifications have dismissed the Fourth Amendment differently over time.
But there’s one more clue that the October 23, 2001 opinion is not among those the Administration currently claims to have used in justifying the illegal wiretap program over time. In his letter demanding the October 23, 2001 opinion, John Conyers–who has already seen the documents turned over as the basis for the illegal wiretap program–said:
On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum. The memorandum has not been received despite these specific requests.
Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States.
This is curious. Conyers made the two prior requests in February of this year–right around a Mukasey visit to HJC. That leaves open the possibility that this does pertain in some way to the illegal wiretap program. Except that by the time he wrote this yesterday, Conyers was supposed to have seen all the documents justifying the program. Except for Lichtblau’s reporting, I would think those documents would be among those Conyers refers to when he mentions "the contents of similar memoranda issued at roughly the same time."
Update:
Here are the OLC opinions Bradbury describes in his declaration:
October 4, 2001, to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.
October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.
November 2, 2001, to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.
February 8, 2002, to General Counsel of "another agency": OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.
October 11, 2002, to John Ashcroft: OLC 129, which consists of two copies, one with handwritten comments and marginalia, of a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.
February 25, 2003, for John Ashcroft: OLC 16, which consists of four copies, one with handwritten marginalia, of a 12-page memorandum, dated February 25, 2003, for the Attorney General from a Deputy Assistant Attorney General for OLC, prepared in response to a request from the Attorney General for legal advice concerning the potential use of certain information collected in the course of classified foreign intelligence activities.
May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.
July 16, 2004, from Jack Goldsmith for the Attorney General: OLC 85, which is a nine-page memorandum, with highlighting, dated July 16, 2004, from the Assistant Attorney General in OLC to the Attorney General, evaluating the implications of a recent Supreme Court decision for certain foreign intelligence activities.
November 17, 2004, memorandum "for the file": OLC 59, which consists of four copies Of an 18-page memorandum for the file, dated November 17, 2004, from the Acting Assistant Attorney General in OLC, plus an electronic file, prepared in response to a request for OLC views regarding the applicability of certain statutory requirements.
My tinfoil hat guess, is that footnote has to dowith the requirement for arrest warrants, not search warrants.
And if I turn out to be right, well, gulags come to mind
Especailly if it also talks about suspending Habeas Corpus.
Remember footnote 10 is in suppport of a section of the Yoo memo that is talking about the president’s ability to detain folks w/o any judicial review of that detention
Ooooh, nice interpretation! Posse Comitatus be gone!
By extension, doesn’t Yoo’s memo apply to any and all Constitutional Articles, judicial opinions, and Congressional laws that can be construed as restricting the President’s Article 2 duties, and not just the 4th amendment?
Yep, yep, and yep
I’ll go you one further.
The Yoo October 23, 2001 opinion “Authority for Use of Military Force to Combat Terrorist Activities Within the United States” isn’t about arrest warrants or habeaus corpus.
Tis about usage of actual military forces against terrorists located within the US.
Remember that the national law enforcement agency is the FBI, and it’s agents are primarily composed of folks who are by training lawyers and accountants.
Even folks like the FBI’s HRT (Hostage Rescue Team), and even local law enforcement types like SWAT were just plain not up to the blood-letting task the Administration contemplated.
Junya and crew wanted war-fighters like the folks in the Special Operations Command (SOC); Delta Force, Seals, Green Berets, etc. Hunter/Killer teams that were trained to kill the enemy, not serve warrants.
They wanted an opinion that removed any doubt that warfare against terrorists within the US could legally be conducted by the US Armed Forces.
Oh, that part does not require tin foil. You get that just form the title of the memo “authority for use of force to combat terroist activites within theh United States”
I also thnk htey were contemplating hand to hand combat in the streets, and/or something akin to that crazy movie where Bruce Willis rounds up all the arab americans and puts them in a prison camp at Randall’s Island (where I used to play rugby)
What is it with these people and their inability to distinguish between rality and action movies and tv shows?
Anyway, I still think it has more to do with “seizure” than with “search”
From the Lichtblau reporting, you quote this:
Just some speculation here, but see if this kinda fits:
1. The Yoo October 23, 2001 opinion “Authority for Use of Military Force to Combat Terrorist Activities Within the United States” relates to the TSP “communications” component of the overall NSA effort. Strictly speaking, it defines “communications surveillance/intercept” as a fundamental part of the war-making/fighting Article II Commander in Chief authority.
2. “Other” opinions were necessary to bootstrap the legality of “other” components of the overall NSA program including stuff like the datamining via VISA, SWIFT, etc. financial records databases, airline passenger record databases (access to the PARS), vehicle rental databases (Avis, Hertz, etc.), and more.
Remember that the technology buzzword that all government agencies are enthralled with these past few years, and the hot, sexy technology sales pitch being given by all the corporate contracting hyenas is “Fusion”.
None of these “other” spokes in the NSA program wheel can be easily shoe-horned into war-making/fighting Article II Commander in Chief authority.
And the “fact” that these spokes do indeed exist, can be doubted by none!
And a wheel without spokes ain’t a wheel at all.
I think they are still using the Gonzalesesque construct of TSP to ambiguate and talk around the offensive programs.
In other words they are still speaking only about “TSP” this pseudo-boundaried, limited, foreign-only intelligence effort.
Hence there is no 4th amendment concern.
Whatever the military was doing that required the 4th suspension memo, has never been acknowledged by the Admin, and certainly will never be called TSP (because then Gonzo really perjured like crazy).
Comey talked around this and Mueller talked around this in testimony.
Goldsmith called the whole shooting match TSP, but he was out of government when TSP was defined.
But basically, no one in the Admin, esp Fratto can be thought to be reliable on this issue.
I’ve added the opinions mentioned in Bradbury’s declaration. As you’ll see, there are two (one for AGAG, one for Ashcroft) from taht period that deal specifically with communications. The whole list is a real treat.
Note. Here’s the interesting thing about the other opinions. Someone told Lichblau there was no OLC opninion supporting this. But according to Bradbury, there were two. Is it possible that Lichtblau’s sources have never read the opinions?
I tend to go with a combo theory. 10/23/01 was it; someone wised up, but not by much, and subsequent foundation docs were created (that still sucked). Possible Lichtblau’s sources didn’t know? What? Did you hit your head? Of course it’s possible; who the hell knows with this wrecking crew. They could have tried to compartmentalize/clean team even even this stuff; you would really have to think that would be unlikely, but who knows?
Two points regarding the opinions Bradbury mentions.
First, note the opinion for the “other government agency” (which is probably NSA, not CIA) refers to: “OLC views regarding the legality of certain hypothetical activities.”
Do we often write opinions regarding “hypothetical activities”? Or is that cover for when this is revealed, so they can pretend they didn’t do what they really did do?
ALso, note the July 16 2004 opinion. Which of the SCOTUS decisions from late June, precisely, would that have been a response to? Note the only opinion close to the March 10 hospital confrontation is one referring to the USE of data (probably about poisoned fruit). Otherwise, they don’t appear to have changed the legal justification for the program until after the June SCOTUS decision. (Both points of which support a lot of arguments Mary has made about the program).
Hamdi v. Rumsfeld? Issued June 29, 2004
That’s pretty much what I had concluded. But can you describe how it would make the government rethink its illegal program? Would you look at the Hamdi opinion and see how general it is (since it pertains to enemy combatants)? I think it’s a question of how broadly the Court restricted the UE in times of war–but what’s interesting is that they have argued since then that the decision DIDN’T limit non-detainee issues.
Got to fly for a while. The review necessary actually requires review of the District court and CAA opinions, the SCOTUS decision pretty much consists of “reversed and remanded”. Basically, I think that was sufficient to exhibit that SCOTUS was not biting on the AUMF and/or Article II crap as being the answer to everything and the gig was starting to be up.
I don’t know the answer to you question, but this might give some insight. I used to sit on a Board of Ethics for a govenment Iwill not mention. Often people would come to use looking for an ethics opinion and they were contemplating some business deal or other. If they structureed it one way, it might be a conflict of interst, if they structured it nother way it might not be so clear a conflict.
SO, they would want ot pose their query to us as alternative hypotheicals, so they could (sorta) get an advance idea of how we might rule and a road map for how they could dance between the raindrops to avoid the law.
We woul dnever do the Hypo opinions. We didn’t want to become enablers of bad behavior.
And, again I am no DOJ dude, but I would think opinions on proposed or potential programs, legislation, actions etc. would be common.
February 8, 2002, to General Counsel of “another agency”: OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.
Perhaps
General Counsel of another agency = Haynes at Pentagon working for Rumsfeld.
hypotheticals = torture techniques of interest to Rumsfeld and Haynes
Deputy Assistant Attorney General in OLC = Yoo
and
an OLC attorney who highlighted and marked-up = ???
It is odd that “an OLC attorney” is not better identified by position or job title.
EW – you could be write, but I very read Lichtblau differently and the way I read it would be in keeping with the Oct memo being the original basis.
Lichtblau says:
I read that as syaing there was not a formal legal opinion that discussed and endorsed “the program.” So Ashcroft may have signed with no opinion at all, then the generic Fourth Amendment opinion was proferred bc he complained, or the generic could have existed when he complained.
Part of what makes me question Lichtblau in general, though, is that when he says:
(emph added)
the opinion that was issued in late 2001 made that declaration, that seems like someone sold him. Because given what we’ve heard about “teh program” so far, it would have had to have said a lot more than that to have covered the bases for what teh program was doing.
I’m also leaning towards the initial opinion relied upon being a very generic one, one that likely does NOT go into what is involved in the teh program, for two reasons. One is the testimony by Comey (who I dont think would lie directly under oath even though I’m not a fan) that indicated/implied that they were undertaking some review of teh program that was perhaps some of the very first in depth review by OLC, such that you would have to wonder how an existing opinion could have covered all of and the right bases. THe second is what Lichtblau says above about the 2004 review finding the opinion to be “incomplete.”
I also tend to disbelieve Fratto on principle.
But I could go either way. Could be a spin off opinion that postdated Yoo’s “remarkable” determinations too. I do tend to think that some of the Pentagon surveillance of Quakers, though, was not so much an accident as something Rumsfeld told them they could do.
Re: the White Paper, I don’t get too persuaded one way or another by it bc at that time, they were still trying to parse the program in line with the President’s admissions as being a program where they were only listening in where “al-Qaeda is calling” and this has been pretty much shot down as being the extent of ‘teh program’ and indeed, there hasn’t been much question but that most al-Qaeda calling calls could have been picked up with or without warrant.
But all three of the Oct/Nov 2001 memos look like they could be what Lichtblau refers to, and if it is more likely – under your theory for example – that the November memo is the operative one, that is REALLY interesting for the assertion of classification or secrecy, since it is all internal to DOJ, going to the AG.
That Bradbury decl. is fascinating. I’m interested in this bit:
FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET
That would map to “October 2001: No OLC review”
Yup. FBI 7 shows up in some other declarations the ACLU got.
BUt still, there are those two opinions that clearly relate to communications from the time period, one before and one after.
November 17, 2004, memorandum “for the file”:
Who was Assistant Attorney General in OLC in November 2004? Was it Levin? Daniel Levin underwent waterboarding sometime between June 2004 and December 2004.
“In December 2004, Levin released the new memo. He said, “Torture is abhorrent” but he went on to say in a footnote that the memo was not declaring the administration’s previous opinions illegal. The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo. “
http://www.politicsandcurrenta…..neral.html
10/12 – the Rasul case, which bring Eisentrager’s footnote into question, was also from June, but the implications of Hamdi have to have been what was worrying them.
Hamdi incorporated the concept that once on US soil, a US citizen, even a terrorist suspect caught on the foreign battlefield, was subject to Constitutional protections. If you had been issuing opinions that the military powers of the President trump the Bill of Rights with respect to US citizens on US soil, you might have paid attention to that opinion.
O’Connor did them every favor she could, keeping the opinion as bland and toothless and vague as possible, but it had to have sent some tremors that Scalia – “their guy” – was ready to absolutely and with certainty say that the President had violated the Constitution by refusing habeas to an American citizen on American soil. Scalia was a thousand times more heated than Rheinquist and O’Connor. In hindsight, we now know that even with a Sup Ct ruling that the PResident had violated the Constituion, no one in Congress would have done anything, but at the time, if you are the one who counseled grave Constitutional violations, you might have even re-read parts of the Scalia dissent with more concern than the O’Connor opinion.
People engaged in massive felonies against American citizens on American soil on the basis of relying upon Scalia to save their butts if they were discovered – they might have taken pause. And might have decided that if the subject ever came up later, they damn sure would only admit to “teh program” involving foreign targeting.
So IF the program, originally, did rely on something like the Oct Yoo opinion about non-application of the Fourth, it certainly is in the best interests of all those involved, from telecoms, to the President to the lawyers parsing to the WH spokespersons parsing, to all make it clear that “teh program” is only the one the president revealed (in the first roll of the barrel down the hill) and that is “only” one that involves furriners. It would likely generate what we have seenwith the dancing by Gonzales and all the misdirection by the President, and all the misrepresntations by Hayden etc.
19 – LOL. Well, it sure would. I think that just put some things at my house to bed.
Justa as a trip down memory lane:
Ex Parte Milligan.
emph added
Remember, in addition to the fourth issues, the necessity/self defense arguments Yoo made about torture interrogations? That “theory of necessity” he used to justify torture?
Like a wheel within a wheel.
Reminds me of Yoo’s NPR Steve Inskeep interview, explaining that “detainee” Habeus Corpus rights would be “too expensive.”
Thoughts:
I guess, “Just Say No”, doesn’t work for drugs, sex or authorizing unprecedented and illegal powers for the president.
The DOJ “changed its rationale”, or described only that portion of it that would not require disclosure of the Yoo “authorization”?
One of the administration’s main rhetorical weapons is repetition, and using earlier iterations as support for later ones. Examples include the Iraq/al-Qaeda/Iraq launched the 9/11 attacks. Cheney’s leaks to the NYTimes, which he then cites as support for his comments to Russert.
Is that what we see in the repetition in the Yoo opinions that laws and constitutional rules can be suspended “in war time”, ie, because the president wants to suspend them. Claim that suspensive power exists in connection with interrogating illegal enemy combatant terrorists; extend that power to interrogating anyone in the US; extend it further to ignore the Fourth Amendment when spying on “potential terrorists”. It does look all of a piece.
EW, LHP, et als.
Everyone seems to have overlooked, or not understood, my number one reason for why I say the 10/23/01 memo is a (if not “the”) authorization for the NSA Wiretapping program(s):
The NSA is part of the military .
The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”
But the proposition for which that memo is cited* in footnote 10 of the memo is:
So, what does this mean? Depends on how you define “domestic military operations”, don’t it?
I argue the 10/23/01 memo was the lawyerly justification for:
(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).
All of those things are military operations.
Looking at a few, sub (a) above is clearly violative of the Fourth Amendment. Protecting the Fourth Amendment was plainly the ultimate purpose of FISA. Sub (a) is also a military operation, particularly when it’s done by the NSA, part of the military.
Sub (b) we know took place. Ask Jesus General and Brandon Mayfield. That the break-in at Mayfield’s place was not done by the military doesn’t mean that Yoo’s analysis wouldn’t allow the military to do it. Being not-done-by-the-military merely meant that the government had to pay for it later.
Sub (c) has been fought over for years. Remember, in civil rights litigation false imprisonment/false arrest is always treated as a Fourth Amendment violation. Because it’s a “seizure”.
Sub (d) we don’t know actually took place. But, since in Bushworld anyone can be a terrist anywhere, it stands to reason that they included it, and meant to. They whack you, they say they were defending themselves against al Qaeda. Just like late in the Torture Memo.
And, finally, all we have to do is look to the oral arguments and briefs in the cases which have already reached the S.Ct. – I’m thinking particularly about Padilla’s. The first word out of the government’s lawyers was that the country is at war. (Promptly shot full of holes by Stevens’ questioning.) The briefs promiently featured the argument that “America is the battlefield”. Maybe not said in exactly those words, but the gov’t considers your backyard and neighborhood part of the global battlefield, where there are neither front lines nor rear areas.
Ties neatly together, don’t it?
–
* I know. Yoo used a “See” signal (go check your Bluebooks, lawyers) ahead of his citation to his own memo. I’ve misused or incorrectly used signals enough times myself, and done enough editing of Law Review articles to know when it’s properly and improperly used. Intellectual honesty among this Admin’s cast of clowns is hardly their long suit. Getting into a contest over that would be the most silly diversion I’ve heard of in a long time, particularly given what’s at stake in the memos and generally.
That war theme the administration uses to excuse many of its hidden abuses, even though Congress hasn’t declared war and the few S.Ct. cases on point say no, it doesn’t. It has been the central excuse for all this government’s behavior since 9/11. It’s impossible to believe their message has been so consistent without Addington & Co., strategizing to make it so. He and Cheney are the consistent landmarks in the changing sea of administration staff.
Thanks for the explanation. I’ve added the beginning part of your comment into the post.
my pleasure to be of assistance. I hope my tone wasn’t too … anything.
One question. Note the July 2004 opinion in the update. Do you think Padilla was a more likely decision than Hamdi, even though it was rejected?
Not sure I understand your thinking. The point I’m making is about the genesis of the wiretapping (and all the rest) – how it plays out years down the road in Hamdi and Padilla is a different kettle of fish.
IMHO, the Admin has been (and is) like the Borg – try one countermeasure, it works for a while, then they learn, adapt their shields and move on. And their adversaries have to find a new countermeasure.
Looking at it like that, they are constantly improvising a new response each time a court hands them a rebuke. They take that rebuke, then file a motion for reconsideration or apply for a rehearing en banc, or do some other procedural maneuver designed to (a) buy time (i.e., kick the issue down the road until they can get more and more supple judges on the courts), (b) pull out of their hats (i.e., make up) some new, previously classified information and say to the judges “but add this to the mix and you have to rule our way, or, in the event (a) and (b) aren’t working, get some initiative rolling with their captive Rethug congress-critters (e.g., the DTA, then the MCA, then the PAA, then the revisions to the PAA) so they can create new issues to litigate over.
In other words, what they are doing is largely an improvisation, though they have very clear goals in mind. Everything is directed toward those goals.
We can see that in the Boumedienne case (and others) currently before the S.Ct. Despite the DTA and MCA and five years of confinement and litigation, those captives still have not had a single substantive hearing on their confinements, nor have they ever gotten all the information the government used to decide to incarcerate them. From the admin’s perspective, this has been a very successful improvisation, since they have managed to inure the population to the whole idea of indefinite incarceration without trial, and to build a whole deck of precedent favoring the government and their ideas.
Following up on my prior – the two big advantages the government has had throughout are (1) control of the classification system and (2) the ability to shortstop the legal process any time they chose.
We see the manipulations of information which (1) yields, every day.
We saw the manipulations (2) enables them to perform a couple different times. In Padilla’s case, if you remember, the S.Ct. ruled, and then remanded to the District Court in S.C. for further proceedings. Those proceedings took place, during which time Padilla remained being tortured in the Charlestown Brig. In due course, the matter was appealed to the Fourth Circuit, which handed down a decision favoring the government. Before Padilla’s case could be considered by the S.Ct. (which was looking quite likely at the time), the government decided to cash in its chips. It took Padilla out of the military system and put him into the civilian justice system, instantly mooting (until such time as they decide to put him back into the military system) his appeal, but nonetheless preserving the very favorable precedent the Fourth Circuit had rendered, for the government’s future use (on other captives).
That had several effects – (a) it likely caused one of the judges who was on that opinion, a rising conservative star who gave the gov’t what it wanted then was then punked on a S.Ct. seat, to resign and take a private industry job, (b) it nullified the coming opportunity for a Democratic president to appoint more liberal judges to the Fourth Circuit b/c to overturn the existing precedent the Fourth Circuit would have to do it en banc – and there would likely be enough Repugs left on that bench to keep the Padilla precedent intact (appellate wonkery, I know), and (c) it prevented Bushco from having to face the S.Ct. on their incarceration without trial issues until later, in the expectation of getting one or two more justices to name between then and that future date.
See it again and again.
As to my question about Hamdi or Padilla, I’m trying to understand what the opinions listed above might contain by understanding wht they were a response to. The July 16, 2004 opinions is almost certainly a response to the SCOTUS decisions in Padilla or Hamdi (and wasn’t there a third–though note, the description says this was a response to a decision, singular).
My question is, what legal challenge would those cases have presented to the program? What, specifically, would they have felt the need to respond to?
Oh. Ding!
Here’s my assumption. The Total Information Awareness program was defunded officially, but most likely just moved to the Defense budget, the one congress votes on without knowing any numbers. This memo covers “domestic military operations” so once the TIA was in the defense dept. they believed they had the right to do this.
They’re wrong, but no one in the Justice Dept. has bothered to tell them.
28 – I think EW understands the point about the NSA being part of DOD, I know I do. If it were not, there would be not much of an argument that the memo even could be the memo on which “teh program” originally rested.
I think Marcy’s point is that Fratto’s direct statements and a straight reading of Licthblau’s article would indicate that (per Fratto) the memo was not the one on which the program rested and (per the Lichtblau article) the program at its very origination had no OLC opinion to rest upon at all (and see 19 above, referring to one page memo from Ashcroft to Mueller), then because of concerns an opinion was issued LATER, the end of 2001 or beginning of 2002.
I discount Fratto out of hand bc the WH is all lying scum.
I tend to agree with you and think that the Yoo Oct opinion may be the original underpinning for the program (and even that Opinion may have postdated what they were already doing). Even without Hamdi, based on Milligan (and notwithstanding the misplaced reliance on Quirin) he has to have been wrong. I also think some broad generic approach, whether it is that opinion or the Nov 2001/Feb 2002 opinions that were the original basis of claimed OLC “authoriztion” will be what the original opinions were based upon. I don’t think they spell out details of of the program and consider them in particulars one way or the other, but instead rely upon broad, sweeping statements and also upon the “fact pattern” of Quirin – just go ahead and do it, no one will do anything about it later.
All fwiw.
But I think everyone does understand the NSA point, and also that from the beginning, some of the FBI crew (apparently not Mueller himself all that much, but people like Cloonan and Coleman) were giving more resistance to criminal activities on US soil than Hayden’s and Tenet’s crews, which also tied neatly with them placing the powers in the military chain. Again fwiw.
A big problem overall is that, with the rush to try to throw in everything including the kitchen sink, we no longer really have any clear or clean “foreign intelligence” surveillance separate and apart from criminal surveillance. The changes to the law, under the auspices of bringing down “the wall” have instead made it very clear that criminal surveillance can be the actual reason and rationale for the surveillance, but so long as anyone can think up any kind of peripheral “foreign intelligence” possibility, they can bootstrap any criminal surveillance they want – without any criminal probable cause whatsoever – onto a FISA warrant. They can then use any kind of “intelligence” discovered to do what Milligan said they could not do – – to take someone like Padilla, a US citizen on US soil, and disappear him into a blackhole for torture without trial and without recognizing his Constitutional protections, as well as to use it for the pursuit of criminal actions where they would never have had the probable cause necessary to get criminal warrants.
Well, I’d rank the reasons why I don’t think the October 23 memo was primary as follows:
1) Conyers hasn’t seen this, but he has seen the memos the Administration gave Congress to authorize the program. Therefore, there have to be other opinions that specifically address the warrantless wiretap program.
2) We have a list, above, of other opinions, including two in the same time period, but which both specify “communications.”
Now, obviously, the list of other opinions that the Administration says pertain to the program mean that Lichtblau is, at least in part, wrong. They also suggest that Fratto is, at least in part, correct.
All that doesn’t mean the October 23 wasn’t part of the general authorization for the program, but it almost certainly was only secondary.
32 – not scribe, but I would lay money on Hamdi as the case that caused ripples about a program involving searching and seizing communications of US citizens on US soil.
You can tell Scalia has no doubts that Hamdi is guilty as snot and that Scalia basically could care less what they did to Hamdi while he was not on US soil, but Scalia not only cleaves to Milligan and says that when Hamdi hit US soil, as a US citizen he was entitled to the full panoply of Constituitonal protections; Scalia does soemthing even scarier for them.
The whole basis of any of their arguments had been Ex parte Quirin and an “expansive” reading of Quirin to say it overruled Milligan’s arguments about the Constitutional protections of a possible unlawful combatant who is also a US citizen on US soil. Scalia – “their” Scalia – says that a) he doesn’t read Quirin that way, but b) if that is the only way to read Quirin, QUIRIN SHOULD BE OVERRULED.
So Hamdi in even its watered down form reaffirms Milligan, and it ends up being a case where O’Connor and Rheinquist were more “pro-Bush” than any of the remaining Justices, including Scalia, with the exception of Thomas. You have to blanche a little if you are the President’s lawyer and Scalia on something where you really do have a bad guy – a real al-Qaeda member who was taken on a battlefield and not just a lot of innocent Americans who were caught in dragnets – Scalia comes out saying not only is that bad guy protected by the Constitution because he is standing on US soil, but that the President has violated the Constitution by refusing to respect the protections it offered. And then for the cherry on top he takes the sole case you really could claim for your argument, Quirin, and says it should be overruled.
Padilla may have had impact on the torture front, even being spun back (and, for that matter, the fact that Maher Arar had filed suit probably got the torture conspirators attention) but if you were engaged in massive felony violations of law and a program that dragnetted all kinds of communications to and from Americans on American soil, with no minimization and no warrants, well, I have to believe Hamdi is the case that spooked them.
I agree that Hamdi spooked them, and you’re right on target that Scalia’s dissent (with a Steven’s join) was doubly concerning:
From the dissent:
“…Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:
“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.” The Federalist No. 69, p. 357.
A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions….“
That last comment seems to directly contravene the OLC Opinion: “…[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations….”
38 – I’m not sure if you are making a distinction between primary v. original, but as to the first point, “Conyers hasn’t seen this, but he has seen the memos the Administration gave Congress to authorize the program. “
I thought that, despite the documents that had been produced, the Judiciary committees were sayign that the original memo(s), whatever preceded Goldsmith’s revamp in 04, had not been produced to Congress. Is that wrong?
Fratto is also pretty careful with his reference being to “TSP” and the tap dances from Gonzales’ days of “the program which the President has acknowledged” come back to mind, including the confused and frustrated mutterings of Feinstein, who was supposedly briefed in, and who didn’t seem to think there were multiple programs, just one program with different aspects.
Again, I wouldn’t be at all surprised if Hamdi on the one hand, and a FISA Chief Judge about to lower the boom on the other hand, with a program that DID include massive military surviellance of US citizens on US soil in the middle, wouldn’t have taken on changes to transform itself into the “TSP” that arguably did less direct spying on Americans on American soil. But who knows?
If the time frame, per Lichtblau (who may have been missing some info too) is through early 2002, then the Oct 4, 2001 “what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists” (I love “potential terrorists” in that reference- wth does that mean?), Oct 23, 2001 “legality of potential responses to terrorist activity” (the one at issue, described in the footnote as “conclud[ing] that the Fourth Amendment had no application to domestic military operations, and which per the footnote was directed not just to Alberto Gonzales – as Bradbury notes, but also to Haynes), Nov 2, 2001 “legality of certain communications intelligence activities” and Feb 8, 2002 “the legality of certain hypothetical activities” might all be possibles.
For that matter, with all the compartmentalization, there’s no real reason why the 4th and 23 – responding to questions from Gonzales and giving advice directly to the President and, on the 23rd, to Haynes also, were not one plank – the opinion on Nov 2 to Ashcroft who was signing off, was another plank, and the Feb 2002 opinion might have been to the NSA and been yet another plank.
So that the various parties got different opinions, targeted to just what they thought they needed or, in the case of Gonzales and the President, wanted, to know or be told.
But who knows – I’m just speculating (I find it interesting that the July 2004 memo was just for Ashcroft and not directed to Gonzales and the President as well) and I’m equally willing to believe that a) the 10/23 memo wasn’t used as the legal basis for the TSP (but only bc the TSP as admitted by the President didn’t include all the earlier domestic spying); or b) the 10/23 memo wasn’t used as the legal basis for even the early programs and that nothing was done at all for those programs until Nov 01 or Feb 02.
I just in my heart of hearts believe that, even if the Feb op is the operative one, there was not enough description and support for the actual programs as a whole as they were being conducted for the original opinions to really be seen as endorsing, other than generically, teh program. ANd that’s why some of the actual review was so important.
And Hamdi may have been the stimulus for what Comey ducked in his testimony, when asked why programs were undergoing so many reviews. If Goldsmith knew there were all kinds of US soil/US citizen based programs, Hamdi would have made you want to pin them down and spin any that couldn’t be supported.
All fwiw.
.
Mary,
I believe you ARE wrong. AFAIK, SSCI, SJC, HPSCI, and most if not all of HJC has seen the memos authorizing the program from the start. And we know that includes any number of foolish things because Whitehouse has told us as much.
EW, I believe you have previously had some communications with members of these committees or their staff.
Would it be possible to send them an email listing all of these opinions and getting back a response as to:
1. Would they examine each listed opinion and identify individually that they have seen each of these opinions previously?
2. Would they identify which opinion/opinions listed form the legal basis for justifying the Administration’s TSP?
3. If the TSP has not been justified by these OLC opinions, would they identify the OLC opinion (by number) that the Administration has used to justify the TSP?
And heaven forbid, perhaps they could make most, if not all, of these OLC opinions public.
Does that work for you? It works for me! *g*
One other thought.
Bradbury had a duty to give a reasonable description of the documents being withheld to the Judge.
Given that he takes the 10/23 memo and, in connection with the ACLU requests for info on the warrantless surviellance activities, describes it as “views concerning the legality of potential responses to terrorist activity” whereas Yoo describes it as, among other things, concluding: “that the Fourth Amendment had no application to domestic military operations” then I would be questioning to the Judge the accuracy and forthrightness of Mr. Bradbury’s descriptions and pushing for the court to obtain and review all the documents to see if they are accurately described.
I guess the reason that I tend towards thinking the 10/23 memo could very well have been the original basis has to do with my now entrenched lack of trust of anything from DOJ and when you look at the references Bradbury gives the documents, the one he seems to not want to even begin to refer to as involving anything about communications surveillance programs is the 10/23 memo. That makes me tend to wonder if it a) isn’t the absolute least defensible of the memos or b) the one on which some of the most illegal activiities were based or c) a and b.
Since John Yoo is the sticky goo around which all this revolves, the mini-planet corkscrewing into the black hole that is Dick Cheney, I thought Rude Pundit should close out this thread. He manages to nail both Yoo and and his best bud, Professor Kmiec, chair of Con. Law at Pepperdine:
http://rudepundit.blogspot.com/
43 – If that happened, I missed it, sorry.
Last I knew, back in February Conyers was still saying that while they had received some documents, there were quite a few things they had not received. Also, they had not received any responses or assurances that the documents turned over, which were being being qualified with the refernce that they were about “the TSP that the President acknowledged in 2005″ indeed covered ALL the warrantless surveillance that was taking place.
In going back to find that, it’s interesting that this 10/23 memo was something Conyers was asking about pretty specifically even in February (and I wonder if there is also a 10/17 memo too?) Here’s the kind of thing I was aware of that made me think they did not have full responses, but that was 6ish weeks ago so I must have missed the completion of turnover.
From Feb 12, 2008 a letter from Conyers to Fielding:
I think we’re talking apples and oranges.
With the exception of this October 23 opinion, everything else he refers to appear to be things other than opinions. That, plus the reference to opinions from around October 23, suggests he has opinions from around October 23. And since we know of at least two that specifically address communications, it suggests that he got those communications that specifically address this program.
Note, I said “memos authorizing this program,” and you’re talking about everything that discusses the program. I’m asking whether we’ve got the stuff that authorized this program formally, Conyers is asking whether we have everything that would reveal why Comey blew his top, much (if not most) is not the opinions.
I don’t doubt, as I’ve said above, that the October 23 provides general authorization for this program. But it can’t be the sole or even primary authorization, because four committees in Congress have opinions that they believe–having reviewed them (and even in the case of Whitehouse having provided a glimpse of what was in them)–authorize this program. Significantly, for example, we know from Whitehouse that one of the opinions they DID receive address 13222, either explicitly or implicitly, which we know from Glenn’s post today, was one of the big problems with the program.
I know Sheldon Whitehouse had access to some OLC opinions, but I have missed where there has been a certifcation of the type Conyers describes, that all opinions on the “TSP” and “other” warrantless programs have been certified under oath as being provided.
One thing that makes me think there mayby the “different branches” of opinions to different people (one set for the President (Oct 4 and 23), one for the AG (Nov 4), one for the NSA (Feb), goes back to this:
So maybe the opinion that formed a part of the basis wasn’t in their hands or they didn’t have all the program info? And is there any way, in that context, to be sure that the Congressional committees have seen something certified as being “everything”? Or would “everything” on “TSP” really be everything on “teh program” as it ran originally?
That article by Eggen suggests there was actually an opinion that declared parts of “teh program” illegal and I have to wonder if Congress agrees it has seen that – an opinion by OLC declaring parts of the program illegal and why?
That could be loosely referring to his verbal, rather than a written, opinion, but I have yet to hear anyone ever say they have seen from OLC declaring parts of the program illegal. But then again, as is obvious from me missing the responses to Conyer’s requests, I don’t see it all and even some of what I do see, I don’t remember.
We already see the outlines of different information to different people, particularly with FBI 7 which just plainly declares the program is legal.
But again, you’re trying to make a different argument than I am.
I’m not arguing they have everything, certainly not every little scrap. I’m arguing that four committees have opinions that they believe to be the authorizations for the program. Yes, it’s possible they don’t have the Yoo to Addington authorization for the whole thing. But they seem to believe they have a great deal of those authorizations (which is different from saying they have all the discussions).
We started this discussion by talking about whether, in the presence of two named opinions that obviously reference communications, which by all appearances four committees have, there was reason to believe this one opinion not referencing communications was MORE on point that the ones directly referencing communications. That is the only reason I was interested in asserting the committees had gotten the opinions–and, note, I was speaking specifically of those two named opinions.
47 – I’m not sure if we are talking apples and oranges, or if you are thinking that all memos about all warrantless surveillance have been turned over because someone has said that memos about the TSP have been made available and you think people like Sheldon Whitehouse and others would have pinned DOJ/OLC down if they hadn’t really made all the opinions available, while I, in my untrusting frame of mind, don’t think that kind of reference does necessarily include everything because it lacks the under oath kinds of certifications that Conyers still seems to be requesting and not to have received. But I haven’t been following the Committee access to info as closely as you have so it may well be that we are just talking about different things.
Conyers obviously had some pretty specific information about the 10/23 memo, which made him able to ask for it specifically – but if OLC hasn’t provided him with all memos, and he doesn’t know specifics on all of them, he can’t ask with that kind of specificity about other memos.
The kinds of language that you mention as being about “other things” is the kind of language laywers use to get everything – they wouldn’t parcel out a separate paragraph on memos unless they knew something about something being withheld (as, apparently, Conyers did).
I look at what Conyers writes and assuming that he had access to the same things the others at intel and judiciary have been provided, he seems to be saying to me that:
a) he hasn’t received assurances or documents sufficient to convince him he has all authorization information on the TSP (including memos – but he wants everything);
b) he did know about the existence of at least one memo that had NOT been provided to him and implicitly that is bringing into question whether or not he has, indeed, had all memos turned over; and
c) he hasn’t received assurances that the program referred to as the TSP program that the President acknowledged in 2005 is the only warrantless surveillance program in which the President, NSA, telecoms etc. were involved with and DOJ and the Whitehouse may be parsing about and pretending a program that predated the 04 changes is something “other than” the TSP, in particular if that program was so illegal it was discontinued.
With Conyers being that clear and specific on his objections, it makes me question what the other Committees have been provided. I do know that Sheldon Whitehouse has looked at a lot of opinions, on things including the deference DOJ has decided it must give to the President’s “interpretation” of the law and the PResident’s interpretation of his CIC powers, but I also haven’t heard SWhitehouse go so far as to say he knows he has seen everything and/or that the WH has certified that all opinions relating to warrantless surveillance and telecom involvement have definitely been provided. It will be interesting to see if Sheldon indicates the 10/23 memo was included in what he did look at and, if not, again you have to wonder what the committees really have or have not seen. SWhitehouse may have said publically that he has seen everything on all the warrantless programs; I absolutely could have missed that.
Looking for the Conyers link originally, I also found this, which, grantedly, is from Rockefeller and he seems as confused as they come or else as dissembling as they come, but still:
So there is maybe at least one other opinion, this one not from OLC but from Gonzales, that attempted to cover the showdown period maybe? I haven’t seen much about a Gonzales opinion(s) on the warrantless program, but that would be interesting to see.
49
Where do they say that – that’s what I have missed and where we are disconnecting.
I know they supposedly have been briefed and have received some documents or, in the case of some like SWhitehouse, have had to go sit in a room somewhere and read through opinions, but where we are missing connections is that I have just missed the Committees saying they have seen all the authorizing opinions. Instead, everytime I hear about stuff being turned over, I seem to have seen responses like Conyers – which doesn’t indicate that he thinks he does have all the opinions. It was back almost two months ago that he was asking for one in particular – the 10/23 opinion now being discusses – and also saying that no one will settle the point of whether or not the there were other programs than TSP, etc. so that just doesn’t sound to me like a guy who is comfortable he has all the authorizations for everything that was going on.
Oh well, I have to take off now – sorry to monopolize but if I’ve missed the Committees saying they got everything then I’d like to go back and see what they did sayabout what was turned over to them while it’s on my mind.
Um, for starters, from people on the committees personally. Including on HJC.
And I still stay you’re talking apples to my oranges. What Conyers has specifically asked for is evidence of what immunity would immunize. That is dramatically different–and much wider–than the authorization for specific programs.
And, again, I’m talking something much more narrow. Conyers has the names of at least three opinions from late October to early November. Two of those opinions specifically reference “communications.” One does not. Conyers is still asking for the one that does not reference “Communications.” ALL I AM SAYING IN THIS THREAD is that it is highly likely that he has two those opinions referencing “Communications,” and that they, in some significant way, pertain to the authorization of the program.
You may be distrustful. But to argue against my point, you’d be arguing that Conyers wouldn’t ask specifically for those two opinions that reference “communications,” even while he was asking for the one that didn’t, even while he was saying he had stuff from that same time period, and even while staffers from his committee have asserted they got the authorization for the program.
I can’t help but muddy the task a bit more. I think that several OCL opinions are not only being issued to deal with different aspects of activities or to nail down the four corners that outline THE program, but additionally the activities of THE program itself were changed in that first year, requiring different authorizations over time. I found a general narrative of this shift to illustrate that point:
http://www.baltimoresun.com/ne…..ory?page=1
Most excellent catch!!!
EW’s commenters really need to read that link!
This stuff about “Thin Thread” raises the hair on the back of my neck:
And this was in 1998 under Clinton! NSA was hoovering domestic communications back then.
There can be zero doubt about the fact that Washington has been lying to us all for years regarding illegal domestic communications intercepts.
Fookin’ lying through their teeth! And Congress had to have known about it!
Again from kspena’s link:
And the next part is out and out BULLSHIT!
Basically, this “intelligence official/cum legal expert” says it is perfectly legal to capture and record all of our communications, just as long as they don’t “listen” to them…until such time as they think they should “listen” to them.
Fookin’ BULLSHIT!
How about they just place cameras in our homes and promise not to watch…until they want to watch?
Fookin’ BULLSHIT!
Hillary, you might want to kick Bill in the family jewels and ask him: “WTF were you thinking?”
Another set of links about “ThinThread” from Wiki:
NSA datamining pushes tech envelope
SAIC Announces Financial Results for Fiscal Year 2003
Oh and btw, the Baltimore Sun reporter who wrote that story in May of 2006 is none other than Siobhan Gorman. Siobhan has since moved on to “better” digs at the Wall Street Journal where she published this story just last month: NSA’s Domestic Spying Grows As Agency Sweeps Up Data