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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We Will Always Be at War against Everyone

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As Spencer reported yesterday, the incoming Chair of the House Armed Services Committee Buck McKeon wants to revisit and expand the 2001 AUMF authorizing our war against al Qaeda.

The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.”

I’m thoroughly unsurprised by this. As I pointed out the other day, if we’re going to hold Khalid Sheikh Mohammed solely using the justification of the AUMF, then we’re going to want to make sure that AUMF is designed to last forever; otherwise, KSM would be entitled to get out when–for example–we withdraw from Afghanistan. Frankly, I expect the Administration will be happy to be forced to accept another AUMF, because it’ll get them out of some really terrible arguments they’ve been making as they try to apply the AUMF to detention situations it clearly doesn’t apply to.

But there are two other aspects to a “reaffirmed and strengthened” AUMF. As McKeon’s aide notes, the enemy has changed geographically, moving to Yemen and Somalia. A new AUMF will make it easier to build the new bases in Yemen they’re planning.

The U.S. is preparing for an expanded campaign against al Qaeda in Yemen, mobilizing military and intelligence resources to enable Yemeni and American strikes and drawing up a longer-term proposal to establish Yemeni bases in remote areas where militants operate.

And I would bet that the AUMF is drafted broadly enough to allow drone strikes anywhere the government decides it sees a terrorist.

Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…

Remember, John Yoo once wrote an OLC memo claiming that because of the nature of this war the military could operate in the US with no limitations by the Fourth Amendment. That memo remained in effect for seven years. We know where they want to go with this permanent war against terror.

Military Encroachment On Civilian Authority & Seven Days In May

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Via Digby comes this unsettling article by David Wood in Politics Daily about the growing militant contempt among military leadership for civilian authority and control.

The military officer corps is rumbling with dissatisfaction and dissent, and there are suggestions from some that if officers disagree with policy decisions by Congress and the White House, they should vigorously resist.

Officers have a moral responsibility, some argue, to sway a policy debate by going public with their objections or leaking information to the media, and even to sabotage policy decisions by deliberate foot-dragging.

This could spell trouble ahead as Washington grapples with at least two highly contentious issues: changing the policy on gays and lesbians in the military, and extricating U.S. forces from Afghanistan. In both cases, senior officers already have disagreed sharply and publicly with Defense Secretary Robert Gates and President Barack Obama, and in some cases officers have leaked documents to bolster their case.

…..

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral,” writes Marine Lt. Col. Andrew R. Milburn in Joint Forces Quarterly, an official journal published by the National Defense University under the aegis of the chairman of the Joint Chiefs of Staff.

That is especially true if his civilian leaders are incompetent, writes Milburn, who currently is assigned to the U.S. Special Operations Command in Stuttgart, Germany.

….

“When the results of bad decision-making are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution — the electoral voice of the people, Congress, or the Supreme Court — are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion,” Milburn writes.

Read the entire article; please.

Now, there is no sense of any direct coup type of trend afoot in all this so much as an accelerating trend to the militarization of government and resigned acceptance by the Read more →

Obama Has Made Civil Liberties AND Foreclosures Worse

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Greg Sargent and Steve Benen have interesting taxonomies of the Democrats who should buck up and clap louder. I think both bring some needed nuance to the discussion. As part of that, both include some kind of category of lefties who oppose Obama to defend important principles. Sargent doesn’t limit that category to any one policy issue.

The second group on the left constitutes high-profile commentators, such as Rachel Maddow and Glenn Greenwald, who are mounting a detailed, substantive policy critique of the Obama administration on issues that are important to them. These folks see their role as advocates for a particular policy agenda, and they don’t hesitate to whack the White House when it commits what they see as grave policy missteps. For them to hold their fire because the White House wants them to would be an unthinkable betrayal of the role they’ve carved out for themselves. This is the “professional left” Robert Gibbs sneeringly alluded to — even though Obama himself has said he craves such criticism.

But Benen does (and he cites a Kevin Drum post in the same vein):

Kevin Drum notes, “If you’re, say, Glenn Greenwald, I wouldn’t expect you to buy Obama’s defense at all. All of us have multiple interests, but if your primary concern is with civil liberties and the national security state, then the problem isn’t that Obama hasn’t done enough, it’s that his policies have been actively damaging. There’s just no reason why you should be especially excited about either his administration or the continuation of the Democratic Party in power.”

Right. Glenn not only has a legitimate beef, I honestly can’t think of anyone who’s offered a persuasive argument to counter Glenn’s criticism. I don’t know, however, how large a group of voters we’re talking about that disapproves of the president based primarily (but not exclusively) on concerns over the national security state.

I’d argue that if Glenn’s contingent represents one group of the disaffected, the other two general groups of center-left critics are (2) those who believe the president’s accomplishments have been inadequate; and (3) those who are struggling badly in this economy, and expected conditions to be better than they are under Obama.

And note that both Benen and Drum make a clear distinction between those (like Glenn, and I assume they’d include me in that camp) have a legitimate gripe, and those who are unhappy with the state of the economy.

I disagree with their argument–that Obama could not really have done much more with the economy–but I think they present it in good faith.

But on one area, their claim that Obama couldn’t do more is absolutely false: on foreclosures.

The Administration has had no requirement to get Congress’ approval for their HAMP program. They have the money sitting, unused, at Treasury. Yet long after it became clear that HAMP was not only not helping, but was actually making things worse, after it became clear that other restructuring programs were much more successful, the Administration made little more than tweaks to the program. And then, as the number of people actually harmed by HAMP piled up, they claimed that the program had succeeded because it helped them get away (thus far) with the Extend and Pretend strategy.

But that introduces another problem with the taxonomies that make a distinction between those with a real gripe and those unfairly holding Obama responsible because the economy has not gotten better.

The failure to do something effective to prevent foreclosures–that is, being satisfied that HAMP helped Extend and Pretend rather than making a sustained effort to help actual homeowners stay in their homes–has made the economy worse. That’s by no means the biggest cause of the ongoing crappiness of the economy. But it is one cause.

So even if you buy the argument that Obama couldn’t have gotten more stimulus passed, even if you forgive Larry Summers for his “insurance policy,” and even if you ignore Obama’s decision to renominate Helicopter Ben in spite of his unwillingness to do anything about the full employment part of his job description, you still have to give Obama some of the blame for the economy. Middle class homeowners all over the country are seeing their home values continue to fall, and that’s something that the Administration could have at least tried to alleviate.

But they didn’t.

FBI’s Lies about Anti-War Surveillance Also Protected CIFA

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Let me spoil the ending of this series on the IG Report on FBI Investigations of First Amendment Activity. I suspect there are ties between the FBI’s investigations of anti-war activists and CIFA, the DOD program that collected information on anti-war activists in the Talon database. I’ll say more about this in a later post or three. But for now, I just wanted to point out the close tie between the FBI reporting on the Pittsburgh anti-war group Pittsburgh Organizing Group (POG) and an entry in a leaked fragment of the CIFA database.

The following are the anti-war POG activities known to be recorded by the government (note, the names of the alleged POG members are pseudonyms invented by the IG Report):

January 8, 2004: Electronic Communication (EC) opens domestic terrorism preliminary investigation into “Nicholas Herman” for being a leading POG member.

February 4, 2004: EC opens domestic terrorism preliminary investigation into “Arnold Philips” and “Terry Waterman” for “doing business as” POG and planning a March 20, 2004 “Global Day of Action against War and Occupation.”

February 24, 2004: Two FBI agents meet with Pittsburgh law enforcement to plan for security for March 20, 2004 event; the EC from the meeting notes that Thomas Merton Center had obtained parade permit for event.

March 20, 2004: Two FBI agents monitor the protest to “verify the participation” of Herman, Philips, and Waterman. The EC notes that no “actionable criminal activities” except trespass on university property took place.

April 19, 2004: EC notes the arrest for disorderly conduct and failure to disperse of Philips and five others protesting George Bush speech in Pittsburgh.

June 3, 2004: Two FBI agents conduct drive-by surveillance of 11 residences, businesses, and organizations frequented by POG members, including TMC.

July 2004, unknown date: Miami FBI field division informs Pittsburgh (and NY) FBI that at meeting in Pittsburgh, POG members planned protest for during the RNC Convention in August-September of that year.

July 9, 2004: FBI obtains 180-day extension for preliminary inquiry into Herman.

July 30, 2004: FBI obtains 180-day extension for preliminary inquiry into Philips and Waterman.

August-September 2004: FBI notes that Waterman had no criminal history and local law enforcement officials in Pittsburgh had never run into Waterman during their investigations of anarchists, though Chicago’s law enforcement said he had ties to anarchists there.

October 29, 2004: Confidential source report–ostensibly tied to the Herman investigation–on organizing meeting at TMC for later anti-war protest. Describes, “meeting and discussion was primarily anti anything supported by the main stream American.”

Unknown 2004: At least one more confidential source report on POG.

November 2004: FBI notes Pittsburgh police arrest of Philips, on disorderly conduct charges, for trying to prevent an officer from arresting another protester burning an American flag.

January 20, 2005: FBI closes preliminary investigation into Herman.

January 26, 2005: FBI closes preliminary investigation into Philips and Waterman.

January 28, 2005: EC reflecting internet article alleging that two FBI agents entered “two … normally locked doors” at Philips’ apartment (where a TMC intern and staffer lived) to leave a note for Philips to call the FBI; the FBI agent claimed they only entered the unlocked outside door and left a note on the apartment door.

February 15, 2005: Confidential source report on POG that includes TMC.

March 1, 2005: Confidential source report on POG that includes TMC.

March 19, 2005: Confidential source report that must have covered the protest marking the second anniversary of the start of the Iraq War.

April 27, 2005: Talon database entry (see PDF 7) describing POG anti-recruitment event targeted at Carnegie Mellon.

Unknown date (probably January) 2006: Chief Division Counsel tells agent to close the apparently still active source.

The IG Report makes it clear that for the fifteen months leading up to the event recorded in the Talon database entry, the FBI had been investigating POG and other Pittsburgh anti-war groups based only on the trumped up claim that members of the groups might commit a crime in the future. The FBI used a confidential informant (as I explain here, the informant was the FBI agent’s son’s friend who had gotten into legal trouble himself) to continue reporting on POG and the anti-war community for two months after the FBI had formally ended the investigation that purportedly justified the infiltration. Apparently, that source remained active for over a year after the investigation was closed (ACLU’s FOIA only covered records mentioning TMC before May 18, 2005, and the IG Report makes no claim to describe all the confidential informant reports on POG).

And surprise, surprise! The very subject of those ongoing investigations–Pittsburgh’s anti-war activism–ends up in DOD’s database.

Note that DOD destroyed this database (though the records were reportedly saved) in June 2006, precisely the month that ACLU sued to get DOD to comply with its FOIA for Talon records including those on POG, so DOD did not turn over those records on POG.

So we don’t know who generated the Talon report on the April 27, 2005 POG effort. But we do know that a number of the Talon reports on anti-war activists came from “Federal law enforcement personnel.” And we know that Talon database entries were routinely shared with local Joint Terrorism Task Forces which, as we’ve seen repeatedly in the IG Report, were the ones investigating Pittsburgh’s anti-war community.

The FBI invented a number of stories to explain away their systematic, long-term investigation of Pittsburgh’s anti-war community, not to mention to explain away the lies FBI told Congress in response to inquiries about that surveillance. But to the extent that surveillance was systematic, those lies served to protect not only FBI, but the CIFA program as well.

Ongoing Investigation of Anti-War Activists

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I’m not done with my posts on the IG Report on FBI’s past investigations into anti-war activists.

But I did want to note that these investigations are ongoing. This morning, FBI in Minnesota raided the homes of some anti-war activists as part of a material support for terrorism investigation. (h/t fatster)

The homes of several leaders of the Twin Cities antiwar movement were raided Friday by the FBI in what an agency spokesman described as an “investigation into activities concerning the material support of terrorism.”

Search warrants were executed on six addresses in Minneapolis and at two in Chicago, said FBI spokesman Steve Warfield.

Among the homes raided were the apartments of Jessica Sundin, who was a principal leader of the mass march of 10,000 on the opening day of the Republican National Convention two years ago, and Mick Kelly, who was prominent in that protest and among those who announced plans to march on the Democratic National Convention in Minneapolis, if the city is selected to host it in 2012.

Mind you, a material support investigation must be tied to an official terrorist organization, as opposed to simply calling anti-war activists terrorists as the Bush Administration did in its investigations of anti-war activists.

Nevertheless, it doesn’t seem like much has changed since Bush was criminalizing political speech.

More Missing Emails at DOJ?

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I’m still working on a big post on the DOJ IG Report on domestic spying. But for the moment I wanted to call attention to a footnote that seems to suggest the emails from FBI employees in Pittsburgh who had conducted surveillance of the Thomas Merton Center and/or invented an excuse for doing so after the fact were unavailable when DOJ’s IG asked for emails in association with this investigation. The foonote (see PDF 60) reads:

We requested all e-mails from the Pittsburgh employees connected with this matter for the relevant dates. However, the FBI provided none that pertained to this matter.

We know there should be some emails, because we know that the supervisor the report calls “Susan Crosetti” received emails from the Counterterrorism Division in 2006 as they were trying to respond to Pat Leahy’s questions about the surveillance. The IG got the emails from CTD–including one asking the question, “do we know who was being investigated at the rally?” But neither Crosetti’s version of the email, nor its response, ever got turned over to the IG.

Killer Drones Coming To America!

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Like all new fads that start overseas and eventually make their way here to the US as the next “new thing”, drones are on their way to our friendly skies. From AP via Google News:

Unmanned aircraft have proved their usefulness and reliability in the war zones of Afghanistan and Iraq. Now the pressure’s on to allow them in the skies over the United States.

The Federal Aviation Administration has been asked to issue flying rights for a range of pilotless planes to carry out civilian and law-enforcement functions but has been hesitant to act. Officials are worried that they might plow into airliners, cargo planes and corporate jets that zoom around at high altitudes, or helicopters and hot air balloons that fly as low as a few hundred feet off the ground.

On top of that, these pilotless aircraft come in a variety of sizes. Some are as big as a small airliner, others the size of a backpack. The tiniest are small enough to fly through a house window.

Exciting! Cops want to use them to catch speeders, monitor traffic and track suspects (that is pretty much all of us). Border Patrol and Sheriff Joe Arpaio want to use them to chase down the brown (skinned that is). Fed Ex wants them so they don’t have to actually pay pilots. And the NSA wants them to spy on “suspicious” people (like the writers on this blog). Hey, it’s all good; what’s the loss of a little privacy when it comes to protecting America?

There is a tremendous pressure and need to fly unmanned aircraft in (civilian) airspace,” Hank Krakowski, FAA’s head of air traffic operations, told European aviation officials recently. “We are having constant conversations and discussions, particularly with the Department of Defense and the Department of Homeland Security, to figure out how we can do this safely with all these different sizes of vehicles.

Excellent! Because I will feel a lot better when the DOD and DHS have the “civilian airspace” saturated with their freaking drones; won’t you? Of course you will. And we are on the way there too. From Government Executive:

The Homeland Security Department expanded the use of unmanned drones along the U.S.-Mexico border this week, flying for the first time this sort of advanced technology in west Texas.

The Predator B unmanned aerial vehicle is providing support to U.S. Customs and Border Protection to help interdict drug smugglers and detect people trying to enter the United States illegally, key lawmakers said.

Texas lawmakers have been clamoring for years to have an unmanned drone assist in border security operations, but the move had been delayed by bureaucratic wrangling between DHS and the Federal Aviation Administration. Drone flights along the Southwest border had been limited to regions in Arizona and New Mexico.
……
By putting eyes in the sky along the Rio Grande, we will gather real-time intelligence on the ground to augment the good work of federal, state and local law enforcement….

Well, so drones are here among us, at least those of us near the Mexican border; and they are here to stay. Government drones are going to be ever more pervasive and ubiquitous throughout the entirety of the country if the law and order types in the federal, state and local governments have anything to say about it. And they will have their say; count on it. Swell, eh?

So, with all of the Afghani, Pakistani and Iraqi wedding parties that have been taken out by US Predator drone strikes, how long before they hit one of our precious wedding celebrations right here in the homeland of the good old “real America”? What will the NeoCon wingnuts say when it hits their own chosen ones?

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

More Obama Administration Civil Liberties Neglect

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In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
….
“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more →

Bush’s Info Sharing Memo and the Warrantless Wiretap Revelations

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Okay, this is going to be a bit weedy, but bear with me.

In the wake of the recent domestic spying revelations and the news that the NCTC center–and current Deputy National Security Advisor John Brennan–were key players in Bush’s illegal spying program, I’ve been reading the October 2007 National Information Sharing Strategy.

And I couldn’t help but notice that the day Risen and Lichtblau first exposed the domestic wiretap program, Bush issued a Memorandum to Heads of Executive Departments and Agencies setting up a framework for information sharing.

On December 16, 2005, in accordance with section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004, the President issued a Memorandum to Heads of Executive Departments and Agencies prescribing the guidelines and requirements in support of the creation and implementation of the [Information Sharing Environment]. In the December Memorandum, the President directed that the ISE be established by building upon “existing Federal Government policies, standards, procedures, programs, systems, and architectures (collectively “resources”) used for the sharing and integration of and access to terrorism-related information, and … leverage those resources to the maximum extent practicable, with the objective of establishing a decentralized, comprehensive, and coordinated environment for the sharing and integration of such information.” [my emphasis]

Now, the memo–and the creation of ISE itself–is not suspicious. As noted, it was required by the Intelligence Reform and Terrorist Prevention Act of 2004. It’s the timing I find curious.

If I read section 1016 correctly, it requires the President to start pushing agency heads to share information 270 days after passage of the law–or roughly September 13, 2005. 

(d) Guidelines and Requirements.–As soon as possible, but in no event later than 270 days after the date of the enactment of this Act, the President shall–

[snip]

(3) require the heads of Federal departments and agencies to promote a culture of information sharing by–

(A) reducing disincentives to information sharing, including over-classification of information and unnecessary requirements for originator approval, consistent with applicable laws and regulations; and

(B) providing affirmative incentives for information sharing.

Now, perhaps Bush fulfilled this requirement with EO 13388, signed on October 25, 2005. But the language in Bush’s own Information Sharing Strategy–with its explicit invocation of section 1016–seems to suggest this Memo fulfilled that requirement. Only he sent it three months late. And, coinkydink of all coinkydinks, he sent it just as it became known that he was spying on Americans.

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