How the “Most Transparent Administration Ever” Worsens Transparency with Transparency Effort

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The Director of National Intelligence has floated a “shockingly bad” proposal on how much review GAO will be permitted within the intelligence community. According to Steven Aftergood, because the proposal defines the intelligence community broadly, it might result in the loss of GAO review in agencies like DOD and State.

The Director of National Intelligence has prepared a draft intelligence directive on access by the Government Accountability Office (GAO) to intelligence information, but it is “shockingly bad,” a congressional official said.

[snip]

The first draft of the new directive is said to reserve maximum discretion to the DNI, and to offer little practical assurance that GAO will get access to the information it needs.So, for example, the definition of intelligence information that may be withheld from GAO extends broadly to law enforcement, military and intelligence information related to national security.  GAO access is to be denied whenever it concerns information regarding “intelligence budgets or funding, or personnel information that… may reveal intelligence strategy, capabilities, or operations.”

“In other words, GAO cannot look at anything that involves money or people,” the congressional official told Secrecy News.  “Combine that with the sweeping, open-ended definition of intelligence and large chunks of the federal government suddenly vanish from [GAO] oversight– DOD, FBI, DHS, State Department, etc.”

Aftergood points out what I did several weeks ago: the intelligence agencies generally (with the exception of NRO), and NSA in particular, have completely ineffective accounting systems.

But when the Committee looked at NSA’s books in 2009, they were still a complete clusterfuck.

The NSA‘s annual financial report was the exception, in that it showed no apparent improvement. In particular, the Committee was concerned about the failed implementation of NSA‘s new financial system. An NSA Inspector General report found that this system was put into operation before it was adequately tested and that operators were not properly trained to use it. The NSA also made $7 million in duplicative invoice payments, and the agency could not successfully reconcile its financial books at the end of fiscal year 2008. Further, a July 2008 Army Finance Command report, referenced by the NSA IG, found that the NSA‘s accounting system was in violation of public laws, Treasury Department financial manuals, and DoD regulations, and was inconsistent with the Federal Managers Financial Integrity Act.

After SSCI cracked heads, the NSA claimed it had fixed the problems in June 2009. Only they hadn’t.

In Re Sealed Case and the Goldsmith Memo

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In addition to what I laid out here, comparing the 2006 White Paper with the May 6, 2004 Goldsmith memo on the warrantless wiretap program made me realize that the White Paper relies more frequently on In re: Sealed Case than Goldsmith does, at least in the unredacted portions. By my count, the White Paper refers to In re Sealed Case 9 times, whereas Goldsmith refers to it just 3 times (see pages 34, 47, 48; though technically one citation includes three quotes from it).

So I wanted to see why that might be–and what it might say about the program generally and the redacted sections of Goldsmith’s memo.

In Re Sealed Case: How Did the Patriot Act Change the “Wall” between Criminal and Intelligence Investigations?

In the PATRIOT Act, Congress expanded the limit on how the information sought in a FISA warrant could be used. It had required that foreign intelligence be the primary purpose of collection; in an attempt to break down the wall between criminal and intelligence investigations, PATRIOT allowed that foreign intelligence only be a “significant” purpose of the collection. In response to that change, Attorney General Ashcroft issued a memo finding that meant law enforcement could be the primary purpose of such collection and holding that criminal prosecutors could consult on the terms of the wiretaps to be used.

The FISA Court, noting that the FBI had misrepresented its goals in FISA collection in a number of recent instances (but citing only those from before 9/11) invoked its role in ensuring FISA collection meet certain minimization guidelines. It ruled that the government had to keep the Office of Intelligence and Policy Review in the loop in conversations between criminal and intelligence personnel, and criminal personnel could not direct wiretaps.

The FISA Court of Review reversed that decision, finding that the two functions were so intertwined as to permit the involvement of criminal personnel in planning wiretaps.

But its ruling also considered whether the change–allowing the government to use FISA to investigate “intelligence crimes”–was Constitutional under the Fourth Amendment. That discussion, while somewhat inconclusive, lays out some guidelines for what might be a reasonable search for a foreign intelligence purpose. It’s that discussion that provides ripe material for Goldsmith’s and the White Paper’s project of trying to claim the warrantless wiretap program was legal. But also, likely, caused big problems for the warrantless program as well.

The In Re Sealed Case Citations

Here’s how the unredacted parts of Goldsmith and the White Paper rely on In re Sealed Case.

Proof that “the wall” was a problem independent of 9/11

In attempts to dismiss the argument that the modifications Congress made to FISA after 9/11 prove Congress still intended the Administration to rely on its, both papers point to the discussion in In re Sealed Case about the problem of a “wall” between criminal investigations and intelligence. (Goldsmith 34, White Paper 28fn)

A claim that the opinion treats foreign wiretapping as an inherent authority

In a discussion of the President’s inherent authority to conduct warrantless searches of foreign intelligence, both papers cite In re Sealed Case on past Circuit discussions of the President’s power to use warrantless wiretaps to obtain foreign intelligence. Goldsmith does so in one discussion.

The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F 3rd 717, 742 (Foreign Intel. Surv. Ct. or Rev. 2002). On the basis of that unbroken line of precedent, the Court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” (Goldsmith 48)

The White Paper cites the first quote on page 31 and again on 37, the second on page 8, and the third on page 35.

In addition to the general use of In re Sealed Case to argue inherent authority, there’s a footnote in In re Sealed Case that dismisses concerns Laurence Silberman raised during the original debate on FISA about the non-adversary process laid out in it; Goldsmith noted that footnote did not extend to Silberman’s larger complaints about inherent power. (Goldsmith 47fn)

Discussion of how “special needs” would permit the use of FISA for criminal wiretaps

The White Paper, unlike Goldsmith in his unredacted discussion of times when “special needs” allow the government to avoid a warrant, relies on In re Sealed Case’s discussion on the topic. The White Paper  includes this quote:

One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes

beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46. (page 38)

It repeats that very reference later on the same page.

In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by

questioning”).

It cites the same passage again, claiming the FISCR had concluded that that passage held that foreign intelligence fit the definition of special needs.

And then borrows from what it claims the FISCR concluded.

As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. (page 39)

In other words, the unredacted sections of Goldsmith do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does. Mind you, he does discuss special needs and his discussion covers most of the same cases as the White Paper–notably on page page 39 and to some degree on 105. But he doesn’t cite FISCR.

“The Government … Has Affirmatively Argued that FISA Is Constitutional”

Now, obviously, we can only compare the unredacted parts of Goldsmith’s memo with what the White Paper uses. And there are definitely places in his memo where it appears likely that he discussed In re Sealed Case in currently redacted passage.

For example, two pages following Goldsmith’s use of In re Sealed Case to claim FISCR had endorsed warrantless wiretapping as part of the President’s inherent authority are redacted.

I’m guessing that Goldsmith might have felt obliged to address this part of In re Sealed Case:

The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

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Are 95% of People Investigated Under New FBI Guidelines Innocent, but Entered into Database?

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The NYT liberated the specific answer to a question that Russ Feingold asked in March 2009, but which DOJ didn’t respond to until November 2010, when Feingold was a lame duck Senator. At issue were new investigative guidelines Attorney General Michael Mukasey issued in late 2008, on his way out the door, which allowed the FBI to investigate Americans for First Amendment reasons so long as that First Amendment reason was not the only reason they were being investigated.

Here’s how the ACLU described the new guidelines:

Under the new “assessment” authority, FBI agents can investigate anyone they choose, so long as they claim they are acting to prevent crime, protect national security, or collect foreign intelligence, with absolutely no requirement of a factual connection between their authorizing purpose and the conduct of the individuals they are investigating. FBI agents can start “assessments” without any supervisory approval, and without reporting to FBI headquarters or the Department of Justice. The Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed and “assessments” have no time limitation. The FBI can even start an “assessment” of you simply to determine if you would make a good FBI informant. Innocence no longer protects ordinary Americans from being subjected to a wide range of intrusive investigative techniques. The techniques include:

  • collecting information from online sources, including commercial databases.
  • recruiting and tasking informants to gather information about you.
  • using FBI agents to surreptitiously gather information from you or your friends and neighbors without revealing their true identity or true purpose for asking questions.
  • having FBI agents follow you day and night for as long as they want.

So in response to Feingold’s questions about how many assessments had been initiated and closed, FBI responded:

The FBI has initiated 11,667 Type 1 and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type 1 and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open.

To do the math, 95% of the Type 1 and 2 assessments that have been closed have resulted in no further investigation, suggesting the FBI was on a wild goose hunt.

But here’s the tricky thing: the FBI records on those people can be entered into FBI’s investigative databases!

Even if information obtained during an assessment does not warrant opening a predicated investigation, the FBI may retain personally identifying information for criminal and national security purposes. In this context, the information may eventually serve a variety of valid analytic purposes as pieces of the overall criminal or intelligence picture are developed to detect and disrupt criminal and terrorist activities. In addition, such information may assist FBI personnel in responding to questions that may subsequently arise as to the nature and extent of the assessment and its results, whether positive or negative. Furthermore, retention of such information about an individual collected in the course of an assessment will alert other Divisions or Field Offices considering conducting an assessment on the same individual that the particular individual is not a criminal or national security threat. As such, retaining personally identifying information collected in the course of an assessment will also serve to conserve resources and prevent the initiation of unnecessary assessments and other investigative activities.

So that says the FBI may be entering those 95% innocent people into a database with personally identifiable information.

Now, to be fair, FBI also mandates that these personally identifying information contain a warning that the person “does not warrant further FBI investigation at this time.”

As a result: (i) when records retained in an assessment specifically identify an individual or group whose possible involvement in criminal or national security threatening activity was checked out through the assessment; and (ii) the assessment turns up no sufficient basis to justify further investigation of the individual or group, then the records must be clearly annotated as follows: “It is noted that the individual or group identified during the assessment does not warrant further FBI investigation at this time. It is recommended that this assessment be closed.”

And, as Charlie Savage notes, the numbers FBI gave Feingold may not be all that accurate.

Some aspects of the statistics are hazy, officials cautioned.

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In 2004, the White House Considered FISA’s Exclusivity Provision to Be Top Secret

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As I have noted before, there are a number of paragraphs in the May 6, 2004 Goldsmith memo authorizing warrantless wiretapping that appear to be badly overclassified. Not only were many of the same paragraphs printed, almost verbatim, in unclassified fashion, in the White Paper released in January 2006. But many of those paragraphs contain nothing more than discussions of published statute.

Now, I hope to do a follow-up to this post on whether I’m right about this overclassification. But thus far, in asking around, no one outside of government has been able to see the logic behind the classification markings on some of these paragraphs, and the people who should know were unable to explain it.

The Overclassification of the March 13, 2003 Torture Memo

Now, I’m not just talking outtamyarse about the possibility that this is overclassified; the Bush Administration has a history of improper classification. It was a particular issue with the March 14, 2003 Yoo DOD Torture Memo. Here’s how former head of Information Security Oversight Office Bill Leonard described the classification of the memo at Russ Feingold’s 2008 secret law hearing:

The March 14, 2003, memorandum on interrogation of enemy combatants was written by DoJ’s Office of Legal Counsel (OLC) to the General Counsel of the DoD. By virtue of the memorandum’s classification markings, the American people were initially denied access to it. Only after the document was declassified were my fellow citizens and I able to review it for the first time. Upon doing so, I was profoundly disappointed because this memorandum represents one of the worst abuses of the classification process that I had seen during my career, including the past five years when I had the authority to access more classified information than almost any other person in the Executive branch. The memorandum is purely a legal analysis – it is not operational in nature. Its author was quoted as describing it as “near boilerplate.”! To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a “secret” Article to the Constitution that the American people do not even know about.

Here are Leonard’s specific complaints about the memo:

In this instance, the OLC memo did not contain the identity of the official who designated this information as classified in the first instance, even though this is a fundamental requirement of the President’s classification system. In addition, the memo contained neither declassification instructions nor a concise reason for classification, likewise basic requirements. Equally disturbing, the official who designated this memo as classified did not fulfill the clear requirement to indicate which portions are classified and which portions are unclassified, leading the reader to question whether this official truly believes a discussion of patently unclassified issues such as the President’s Commander-in-Chief authorities or a discussion of the applicability to enemy combatants of the Fifth or Eighth Amendment would cause identifiable harm to our national security. Furthermore, it is exceedingly irregular that this memorandum was declassified by DoD even though it was written, and presumably classified, by DoJ.

Mind you, the Goldsmith memo is not as bad as the March 2003 memo. As we’ll see, every single paragraph includes a classification mark (though I believe some–if not many–of those are specious). But like the March 2003 memo, this one does not describe who classified it, when it could be declassified, nor a reason for declassification. And as I explained, the people who should be able to offer an explanation (like DOJ) are unable to.

When Feingold asked about the improper classification of the March 2003 memo (see PDF 53-54), DOJ explained,

Because none of the attorneys who participated in preparing the March 2003 memorandum remains at the Department of Justice, no current DOJ employees have first-hand knowledge of the circumstances surrounding the classification of that memorandum. We have consulted the Acting General Counsel of the Department of Defense and understand from him that the memorandum was classified under the authority of DoD using that agency’s classification authority because the memorandum related to the guidance of a DoD working group charged with developing recommendations of the Secretary of Defense concerning a range of possible interrogation techniques for use with alien unlawful combatant detained at Guantanamo Bay.

In other words, they claimed the memo was classified under derivative classification of the DOD Detainee Working Group.

Derivative of the Original White House Authorizations

That background helps us at least surmise what is claimed to have happened with this memo.  It says on its front page it was,

Derived from: “Presidential Authorization for Specified Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States,” dated Oct. 4, 2001, and subsequent related Presidential authorizations [at least one line redacted]

In other words, this memo tells us it was derived from the original White House authorization of October 4, 2001 (note, not the John Yoo memo authorizing the program from the same date). From that, it’s a safe bet that, given that OLC is not a classification originator (that is, Jack Goldsmith couldn’t have classified this memo without violating the sometimes-pixie-dusted EO on classification), the White House (you know, someone like Dick Cheney?) must have classified this document as the originator of the documents of which it was a derivative.

Which brings us to what I believe to be either arbitrary, or badly manipulative, determinations of which paragraphs are classified.

Let’s start with one of my favorite examples. Page 20, footnote 17 reads, in its entirety,

17 See also 50 U.S.C. 1810 (providing for civil liability as well). (TS//SI[redacted]//NF)

Someone in government–almost certainly someone in the White House–claimed in 2004 that the mere citation of one clause of the FISA legislation and the admission that its plain language meant violation of FISA called for (in addition to the criminal penalties described in the body of the text, also classified Top Secret) civil penalties was Top Secret and compartmented.

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The White Paper and the Classified Opinion

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As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 OLC opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program. Yet in one case–the White Paper’s discussion of how the Hamdi decision affected the program–this probably repeats a discussion in another, still classified, Goldsmith opinion he wrote the day before he left on July 17, 2004. Then there’s a bunch of information that appears (in both redacted and unredacted form) in the Goldsmith opinion but not the WP. As I discuss below, I think there are a number of reasons for this.

I should warn that I did this in about a day or so, so I certainly may have misstated what’s in Goldsmith’s memo. Let me know if you catch anything like that.

General Contents

Goldsmith’s memo is organized this way:

Background (including genesis of program, the scary memo process of reauthorization, two sets of modifications, and prior OLC opinions)

Analysis [of whether the illegal wiretap program is legal under 5 different criteria]

I. Executive Order 12333

II. Statutory Analysis (of FISA and Title III wiretap laws)

III. Completely redacted criterion*

IV. Completely redacted criterion*

V. Fourth Amendment (including extensive discussion of why the current threat makes the illegal program a reasonable search)

*If I had to guess what the two completely redacted criteria are, I’d say one is the Defense Appropriation of 2004, which prohibited data mining of US data, and one is the First Amendment.

The bolded subjects above don’t appear in the WP. The exclusion of some of this–the discussion of how the program works, for example–is dismissed in the WP by saying it cannot be discussed in an unclassified document. The EO 12333 discussion, which presumably pertains in part to the wiretapping of US persons overseas, didn’t seem to be the big public concern after the program was revealed (or maybe the WP didn’t want to admit that limits on wiretapping Americans were just pixie dusted away). And some of these subjects–such as the Defense Authorization, if my guess that it’s one of the totally redacted criteria is right–were no longer operative in 2006 when the WP was issued.

In general, Goldsmith (and the WP) replace John Yoo’s authorization of the program under Article II with what he calls “new analysis” finding that the Afghan AUMF bestowed on the President full Commander in Chief powers, which in the process meant his war powers trumped FISA. The formula isn’t much more sound than what we suspect Yoo to have said, but it gives Goldsmith lots of places to insert wiggle room into interpretations of FISA, for example, arguing that the principle of constitutional avoidance suggests that the purported conflict between the AUMF and FISA must be resolved to make sense constitutionally which, in Goldsmith’s book, means a tie goes to the Commander in Chief.

The focus on the AUMF allows both documents to rehearse a long history of wartime wiretapping that just happens to magically skip the Vietman-era wiretapping that FISA was written to prohibit.

In addition, Goldsmith (and the WP) argues that the importance of the government’s interest in wiretapping al Qaeda makes the warrantless program “reasonable” under the Fourth Amendment. Note, this is almost certainly a departure from John Yoo’s November 2, 2001 Fourth Amendment based argument, given how closely that opinion seems to cling to his October 23, 2001 Fourth Amendment evisceration opinion, and given Goldsmith’s decision not to rely on that opinion on page 100. In the Fourth Amendment discussion, Goldsmith gives very extensive (but entirely redacted) information on the threats that justify such wiretapping; the WP effectively just says “trust us.”

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AT&T Confident Its Partner in Crime Will Let It Take Over T-Mobile

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Here’s the last paragraph of a Politico article describing the considerable extent of AT&T’s paid influence in DC.

AT&T said Monday that it is “confident” it can secure federal approval as it presents its case for T-Mobile, and both companies signaled Monday that they hoped to wrap everything up in about a year. AT&T declined to comment on its lobbying and PAC efforts and whether those efforts would be stepped up as it pushes for merger approval.

Now, the Politico piece is worth reading just for a sense of how corrupt the upcoming approval of the merger will no doubt be.

But somehow Politico forgot to mention the other reason AT&T will be granted the right to buy T-Mobile in spite of its clear assault on key principles of competitive capitalism: because the government owes AT&T.

Or, to put it another way, AT&T and the government have become so closely entwined in their joint program spying on Americans that the government cannot be said to be an independent reviewer of AT&T’s business.

Not only that, but by having AT&T take over T-Mobile, the government will get more unfettered access to Americans’ phone records. As Chris Soghoian explains:

While it is little known to most consumers, T-Mobile is actually the most privacy preserving of the major wireless carriers. As I described in a blog post earlier this year, T-Mobile does not have or keep IP address logs for its mobile users. What this means is that if the FBI, police or a civil litigant wish to later learn which user was using a particular IP address at a given date and time, T-Mobile is unable to provide the information.

In comparison, Verizon, AT&T and Sprint all keep logs regarding the IP addresses they issue to their customers, and in some cases, even the individual URLs of the pages viewed from handsets.

While privacy advocates encourage companies to retain as little data about their customers as possible, the Department of Justice wants them to retain identifying IP data for long periods of time. Enough so that T-Mobile was called out (albeit not by name) by a senior DOJ official at a data retention hearing at the House Judiciary Committee back in January:

“One mid-size cell phone company does not retain any records, and others are moving in that direction.”

If and when the Federal government approves this deal, T-Mobile’s customers and infrastructure will likely be folded into the AT&T mothership. As a result, T-Mobile’s customers will lose their privacy preserving ISP, and instead have their online activities tracked by AT&T.

So no wonder AT&T is so confident they’ll get to do what they want, and to hell with the interests of consumers. While this deal offers zero benefit for consumers, it does give the government just what it wants.

Will the US Share Intelligence with Israel’s New Left Wing Intelligence Initiative?

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Ha’aretz reports that Israel’s Military Intelligence set up a group several months ago dedicated to collecting intelligence on non-Israeli leftist organizations that criticize Israel.

Military Intelligence is collecting information about left-wing organizations abroad that the army sees as aiming to delegitimize Israel, according to senior Israeli officials and Israel Defense Forces officers.

The sources said MI’s research division created a department several months ago that is dedicated to monitoring left-wing groups and will work closely with government ministries.

[snip]

Military Intelligence officials said the initiative reflects an upsurge in worldwide efforts to delegitimize Israel and question its right to exist.

“The enemy changes, as does the nature of the struggle, and we have to boost activity in this sphere,” an MI official said. “Work on this topic proceeds on the basis of a clear distinction between legitimate criticism of the State of Israel on the one hand, and efforts to harm it and undermine its right to exist on the other.”

The new MI unit will monitor Western groups involved in boycotting Israel, divesting from it or imposing sanctions on it. The unit will also collect information about groups that attempt to bring war crime or other charges against high-ranking Israeli officials, and examine possible links between such organizations and terror groups.

Now aside from thinking generally that this is a bad idea, I’m particularly concerned about whether or not the US will share intelligence with Israel on such issues.

For example, the initiative says it will look for ties between groups critical of Israel and terrorist groups. How is that different from the investigation of a bunch of peace activists’ ties with humanitarian organizations which has suggested the peace activists have ties to Hezbollah? And since we know OLC gave the President and certain Federal Officials the green light to ignore privacy protections on the sharing of grand jury information in the PATRIOT Act, does that mean our government will readily share the information they’re collecting in that grand jury with the Israelis?

And to some degree, the Israelis wouldn’t even have to rely on intelligence sharing, per se. In his book The Shadow Factory, James Bamford spent some time detailing the Israeli ties to key companies in our electronic surveillance, companies like Verint, which intercepts and stores communication, PerSay, which does voice mining, NICE, which does voice content analysis, and Narus, which enables real-time surveillance on telecom lines. Between Verint and Narus, Bamford writes,

Thus, virtually the entire American telecommunications system is bugged by two Israeli-formed companies with possible ties to Israel’s eavesdropping agency–with no oversight by Congress.

And we can find such ties closer to home, too. The company that had been paid by Pennsylvania to track potential threats to critical infrastructure which ended up tracking First Amendment protected speech, the Institute of Terrorism Research and Response, is an Israeli company. Among other groups it tracked (one key focus was anti-fracking groups) were peace organizations–precisely the kind of group that might oppose Israel’s actions in Gaza.

The concern that federal and state entities have been paying companies with Israeli ties to collect information on groups that might include the same peace groups targeted by this new initiative in Israel is one thing.

But think of the other logical possibility. Our federal and state governments usually show some embarrassment when they get caught collecting intelligence on peace groups (though that doesn’t seem to stop it from happening over and over again). What will stop those same government entities from asking Israel to collect such information?

How to Ensure You’ll Always Have War Powers to Fight Eastasia

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As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA.

But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever war) is to sustain the claim that we were still at war in 2004, given that so many of the troops had been redeployed to Iraq. And to sustain the claim that the threat to the US from al Qaeda was sufficiently serious to justify eviscerating the Fourth Amendment.

So, they used politicized intelligence and (accidentally) propaganda to support it.

Use of the Pat Tillman Propaganda to Support Case of Ongoing War

As I’ve noted, Jack Goldsmith made the unfortunate choice to use an article reporting Pat Tillman’s death as his evidence that the war in Afghanistan was still going on.

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

That article was not really about the ongoing war in Afghanistan; rather, it told a lie, the lie that war hero Pat Tillman had died in combat, rather than in a friendly fire incident.

Pat Tillman, the Arizona Cardinals safety who forfeited a multimillion dollar contract and the celebrity of the National Football League to become a U.S. Army Ranger, was killed in Afghanistan during a firefight near the Pakistan border on Thursday, U.S. officials said yesterday.

Tillman, 27, was killed when the combat patrol unit he was serving in was ambushed by militia forces near the village of Spera, about 90 miles south of Kabul, the Afghan capital. Tillman was hit when his unit returned fire, according to officials at the Pentagon. He was medically evacuated from the scene and pronounced dead by U.S. officials at approximately 11:45 a.m. Thursday. Two other U.S. soldiers were injured and one Afghan solider fighting alongside the U.S. troops was killed.

The death of Tillman, the first prominent U.S. athlete to be killed in combat since Vietnam, cast a spotlight on a war that has receded in the American public consciousness. As Iraq has come into the foreground with daily casualty updates, the military campaign in Afghanistan has not garnered the same attention, though there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda.

Now, I say the choice was unfortunate because, in spite of the fact that Tillman’s commanding officers knew within 24 hours of his death on April 22 that it was a friendly fire incident, in spite of the fact that General Stanley McChrystal sent an urgent memo within DOD on April 29 that the death was probably friendly fire, and in spite of the fact that the White House learned enough about the real circumstances of Tillman’s death by May 1 to make no claims about how he died in a Bush speech, there’s no reason to believe that Jack Goldsmith would have learned how Tillman died until it was publicly announced on May 29, 2004.

In other words, it was just bad luck that Goldsmith happened to use what ultimately became an ugly propaganda stunt as his evidence that the Afghan war was still a going concern.

Producing Scary Memos to Justify Domestic Surveillance

I’m less impressed with the description of the role of threat assessments that we’re beginning to get.

Goldsmith’s memo includes an odd redaction in its description of the threat assessment process.

As the period of each reauthorization nears an end, the Director of Central Intelligence (DCI) prepares a memorandum for the President outlining selected current information concerning the continuing threat that al Qaeda poses for conducting attacks in the United States, as well as information describing the broader context of al Qaeda plans to attack U.S. interests around the world. Both the DCI and the [redacted] review that memorandum and sign a recommendation that the President should reauthorize [redacted name of program] based on the continuing threat posed by potential terrorist attacks within the United States. That recommendation is then reviewed by this Office. Based upon the information provided in the recommendation, and also taking into account information available to the President from all sources, this Office assess whether there is a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to authorize the warrantless involved in [redacted, probably name of program]. [my emphasis]

Now, there are any number of possibilities for the person who, in addition to the DCI, reviewed the threat assessment: John Brennan and others who oversaw the threat assessment are one possibility, David Addington or Dick Cheney are another.

But the IG Report provides another possibility or two that makes this whole passage that much more interesting:

The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al Qaeda and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President’s Authorizations of the PSP.

The Director of the Central Intelligence’s (DCI) Chief of Staff was the initial focus point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA’s terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.

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The March–and April or May–2004 Changes to the Illegal Wiretap Program

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Apologies in advance. I’m going to be in the weeds reading the May 6, 2004 Goldsmith opinion for a little bit.

In this post, I want to point to some details of timing that, I think, suggest that the changes DOJ made to Cheney’s illegal wiretap program in 2004 included, first, a limitation on collection to people with actual alleged terrorist ties (but not just with al Qaeda), and second, a shift of the data-mining part of the program under other parts of the PATRIOT Act.

What follows is largely a wildarsed guess.

The Half-Redacted Timing of the Post-Hospital Changes

As I noted in my working thread, DOJ has redacted part of the date of the 2004 modifications in the table of contents and pages 9 and 11. But on page 16, it has left unredacted a reference to a March 19, 2004 redaction. The opinion itself gives partial explanation for this: Goldsmith refers to “those” modifications, plural, on page 9, and describes a “series of changes” on page 11. The existence of more than one modification is confirmed by the IG Report, which says,

Notwithstanding Gonzales’s letter, on March 17, 2004 the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported. The President’s directive was expressed in two modifications to the March 11, 2004 Presidential Authorization.

Though note the slight discrepancy between Goldsmith’s reference to a “series” (which to me means more than two) versus the IG reference to two modifications.

Now, the redactions and common sense suggest when at least one of the other changes must have taken place. Since Goldsmith wrote the memo on May 6, the redacted phrase can only be “April” or “May.” Given the spacing in the redactions–particularly the one in the second line of the only complete paragraph on page 11, which takes up the same space as the 9 characters “concernin” in the line below–it is unclear which it would be. It might read “and April ” or it might read “and May, “. It is worth noting that if the March 11 authorization were a 45-day one, it would have expired on April 25 and left, without this May 6 opinion, the program working without any basis still. Yet SSCI has told us the March 11 authorization was for “not more than 60 days,” which would have extended to May 5. For these and other reasons, my guess is May (suggesting that Goldsmith waited until the last changes were made to write his memo), but that’s just a guess. And DOJ, obviously, isn’t telling.

[Update: Thanks to William Ockham, who did the kerning work, it looks like “May” is correct.]

The March 19 Modification Limits Content Collection to Terrorist Conversations

On page 16, Goldsmith writes,

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [~ 6-7 word redaction] He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group

Further down that page, Goldsmith begins the list of the only three things this opinion authorizes. The first is:

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Goldsmith’s language here is remarkably similar to that he used in some of the letters he wrote at precisely the same time limiting the torture program. In both cases, he is trying to impose limits on a program that has already exceeded those limits. That, plus the reference to Bush’s “clarifi[cation]” of the scope of the program suggests the limit on intercepting the content of conversations in which one party is a terrorist is new.

I’ll have much more to say about this. But note that Goldsmith’s limit here does not match the terms of the Afghan AUMF, which is limited to those who were directly tied to 9/11.

That 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 that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

In other words, while the requirement that the program collect content only from those with a tie to a terrorist may be a new limit imposed in 2004, it also seems to exceed the very AUMF that Goldsmith was newly relying upon to authorize the program.

Goldsmith does have one out for that problem. As he notes elsewhere, the Afghan AUMF language on terrorism is repeated (and actually expanded) in the Iraq AUMF.

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Did you know that the Iraq AUMF mentions “terrorist” or “terrorism” two more times–19–than it mentions “weapon”–17?

So writing in 2004, I guess, Goldsmith could claim that a still-active AUMF authorized war against terrorism more generally. Now, we apparently just avoid written AUMFs altogether.

And with it, he authorized the interception of content of not just al Qaeda affiliates conversations, but of any terrorist who was at war with the United States. I wonder if Hamas and FARC are included in that?

The April or May Change(s)

But that’s just the change DOJ is willing (sort of) to let us know about. What about the other changes?

While I can’t say for sure, consider the following data points.

First, note that Robert Mueller’s chronology of the warrantless wiretap confrontation had what used to seem like a bizarre end date. He shows multiple contacts a day with Jim Comey until March 17. Shortly thereafter on March 19, it appears, Bush at least narrowed the content collection to actual alleged terrorist conversations. But then there’s a March 23 meeting between Mueller and Dick Cheney, at the Vice President’s request and in his office.

Next, remember there’s a great deal of evidence–including reporting during the Protect America Act debate–to suggest that data mining was one of, if not the key, problem behind the hospital confrontation.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

Then, note that the day after Mueller’s meeting with Cheney, FBI moved toward actually using Section 215 of PATRIOT, which they had not done previously.

Finally, consider some of the changes made to the way Section 215 and NSLs were used that year–effectively using them to collect call data–and Section 215 specifically to support a secret program in 2005.

So Lichtblau suggests that the big change–the one DOJ won’t let us know about–has to do with searches of massive databases of records of phone calls and email messages of millions of Americans. And on they day after a private Mueller meeting with Cheney but probably before the second (at least) big change from spring 2004, FBI starts using the provision they would go on to use, some time in 2004, to collect call data. (And sometime in 2005 Section 215 came to be used to support a secret program unto itself.)

In any case, this is a wildarsed guess. But it appears likely that DOJ stopped acquiring metadata on calls to use in data mining in one fashion, and instead started using Section 215 and trap and trace requests to get the data.

Given the Bybee memo we’ve recently discovered which seems to support fairly expansive use of databases, however, I’m guessing they didn’t stop doing data mining of the call data.

Another Secret OLC Opinion: This One on Information Sharing

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As MadDog and I were discussing on this thread, the May 6, 2004 Jack Goldsmith opinion on the warrantless wiretap program references an OLC opinion that appears not to have been publicly released or, even in the course of FOIA, disclosed.

Thus, this Office will typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander-in-Chief powers. Cf, id. at 464-66 (applying avoidance canon even where statute created no ambiguity on its face). Only if Congress provides a clear indication that it is attempting to regulate the President’s authority as Commander in Chief and in the realm of national security will we construe the statute to apply.19

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

This is probably a memo examining what kind of limits section 203 of the PATRIOT Act impose on Executive Branch officials. That section permits the sharing of Grand Jury and Title III wiretap information with the intelligence community–even information pertaining to US persons. But it requires that, “any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

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