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Obama Administration Changed the Rationale for Why Assassinations Don’t Violate the Assassination Prohibition

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As a number of outlets have reported, the Second Circuit last month upheld the government’s effort to keep a March 29, 2002 OLC memo pertaining to targeted killing secret; the opinion was unsealed yesterday. The government is probably doing so to keep changes in their rationale for why assassinations don’t violate the prohibition on assassination in EO 12333 secret.

The judges on the panel — especially Judge Jon Normand, who wrote the opinion — had pushed during an ex parte hearing in June to release language in that earlier memo because the dog & pony show around drone strikes in 2012 to 2013 had used closely related language. But after some more secret briefing, the court decided the application of EO 12333 was different enough such that it remained properly protected.

It seems highly likely the specific part of EO 12333 under discussion pertains to the assassination ban. Between the earlier hearing and the opinion, the court pointed to language in the March 25, 2010 Harold Koh speech, the March 5, 2012 Eric Holder speech, and the April 30, 2012 John Brennan speech on targeted killing (they also pointed to two Panetta comments). Each of the cited speeches discusses the assassination ban — and little else that might directly pertain to EO 12333, besides just generally covert operations authorized under Article II. There’s this language in Koh’s speech.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

This language in Holder’s speech,

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

And this language in Brennan’s speech.

In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.

But even though all these public speeches commented on this interpretation of the assassination ban, the 2nd Circuit still permitted the government to shield the earlier memo.

The transcript of the June ex parte hearing reveals one explanation for that: the earlier memo was a “far broader interpretation” of the issue.

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That’s consistent with the government’s earlier claim (which I wrote about here).

Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

In other words, while the earlier memo discusses the same aspect of EO 12333 as these public speeches (again, the assassination ban is by far the most likely thing), the earlier memo uses significantly different analysis, and so it may be hidden.

The June transcript also reveals that OLC lawyers reviewed and wrote on the 2002 memo at a later time — the implication being that someone in OLC reviewed the earlier memo in 2010 when writing the Awlaki one (and curiously, that hard copy with handwritten notes is the only one DOJ claims it can find).

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There are two things I find increasingly interesting about this earlier memo about EO 12333 — including at least one part presumably about the assassination ban. First, the implication that one of the lawyers reviewing it in 2010 saw the need to write a new memo (perhaps seeing the need to clean up yet more crazy John Yoo language? who knows). As I repeat endlessly, we know there’s a memo of uncertain date in which Yoo said the President could pixie dust the plain language of EO 12333 without changing the public language of it, and it’s possible this is what that memo did (though the President was clearly pixie dusting surveillance rules).

But I’m also interested in the date: March 29, 2002. The day after we captured Abu Zubaydah (who, at the time, top officials at least claimed to believe was a top leader of al Qaeda). The SSCI Torture Report made it clear the CIA originally intended to disappear detainees. Were they planning to execute them? If so, what stopped things?

In any case, CIA won its battle to hide this earlier discussion so we may never know. But it appears that DOJ may have felt the need to think thing through more seriously before drone assassinating a US citizen. So there is that.

 

The Unopened Torture Report and Trusting CIA on Other Covert Operations

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Yesterday, Pat Leahy issued a Sunshine Week statement criticizing Richard Burr for attempting to reclaim all copies of the Torture Report, but also complaining that State and DOJ haven’t opened their copy of the Torture Report.

I also was appalled to learn that several of the agencies that received the full report in December have not yet opened it.  In a Freedom of Information Act (FOIA) lawsuit seeking release of the full report, Justice Department and State Department officials submitted declarations stating that their copies remain locked away in unopened, sealed envelopes.  I do not know if this was done to attempt to bolster the government’s position in the FOIA lawsuit, or to otherwise avoid Federal records laws.  I certainly hope not.  Regardless of the motivation, it was a mistake and needs to be rectified.

The executive summary of the torture report makes clear that both the State Department and the Justice Department have much to learn from the history of the CIA’s torture program.  Both agencies were misled by the CIA about the program.  Both should consider systemic changes in how they deal with covert actions.  Yet neither agency has bothered to open the final, full version of the report, or apparently even those sections most relevant to them.

Today, Ron Wyden issued a Sunshine Week release linking back to a February 3 letter Eric Holder is still ignoring.  The letter — which I wrote about here — addresses 4 things: 1) the unclear limits on the President’s ability to kill Americans outside of war zones 2) the common commercial service agreement OLC opinion that should be withdrawn 3) some action the Executive took that Wyden and Russ Feingold wrote Holder and Hillary about in late 2010 and 4) DOJ’s failure to even open the Torture Report. Wyden’s statement, lumps all these under “secret law.”

U.S. Senator Ron Wyden, D-Ore., renewed his call for Attorney General Eric Holder to answer crucial questions on everything from when the government believes it has the right to kill an American to secret interpretations of law. The Justice Department has ignored these questions or declined to answer them, in some cases for years.

[snip]

“It is never acceptable to keep the basic interpretations of U.S. law secret from the American people. It doesn’t make our country safer, and erodes the public’s confidence in the government and intelligence agencies in particular,” Wyden said. “While it is appropriate to keep sources, methods and operations secret, the law should never be a mystery. Sunshine Week is the perfect time for the Justice Department to pull back the curtains and let the light in on how our government interprets the law.”

This may be secret law.

But I find it interesting that both Wyden’s letter and Leahy’s statement tie covert operations to the lessons from the Torture Report.

There are many reasons DOJ (and FBI) are probably refusing to open the Torture Report. The most obvious — the one everyone is pointing to — is that by not opening it, these Agencies keep it safe from the snooping FOIAs of the ACLU and Jason Leopold.

But the other reason DOJ and FBI might want to keep this report sealed is what it says about the reliability of the CIA.

The CIA lied repeatedly to DOJ, FBI, and FBI Director Jim Comey (when he was Deputy Attorney General) specifically. Specifically, they lied to protect the conduct of what was structured as a covert operation, CIA breaking the law at the behest of the President.

Of course, both DOJ generally and FBI specifically continue to partner with CIA as if nothing has gone on, as if the spooks retain the credibility they had back in 2001, as if they should retain that credibility. (I’m particularly interested in the way FBI participated in the killing of Anwar al-Awlaki, perhaps relying on CIA’s claims there, too, but it goes well beyond that.)

That’s understandable, to a point. If DOJ and the FBI are going to continue pursuing (especially) terrorists with CIA, they need to be able to trust them, to trust they’re not being lied to about, potentially, everything.

Except that ignores the lesson of the Torture Report, which is that CIA will lie about anything to get DOJ to rubber stamp criminal behavior.

No wonder DOJ and FBI aren’t opening that report.

Does Petraeus Plea Say NO Classified Info Appears in “All In”?

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Sorry to be all Petraeus-centric.

But I wanted to follow up on one more detail about his plea deal, because it has been a point of discussion on whether he faces an appropriate punishment.

A number of people are saying that Paula Broadwell did not publish any classified information that David Petraeus shared with her.

Do we actually know that?

I’m not sure whether we know that to be true or not. What the plea deal says (and unless I’m mistaken, all it says) is that she did not publish any information from his Black Books, those notebooks full of code word intelligence and covert operatives identities and deliberative conversations with NSC.

No classified information from the Black Books appeared in the aforementioned biography.

That’s different from saying that he did not share and she did not publish any classified information.

This plea deal, as all plea deals I’ve seen do, notes that not everything known is in the plea deal.

This Factual Basis does not attempt to set forth all the facts known to the United States at this time.

The early stories on this leak suggested that FBI saw things in their emails and in things seized from her home that suggested he had shared classified information with Broadwell. The Black Books were likely the most classified thing he shared with her (one would hope), but that leaves open the possibility that he shared a lot less classified information (which would be less problematic to share with a Reserve Officer, but not if she published it).

I don’t know one way or another. But unless I’m mistaken, neither does anyone else, based on the public record. Clearly DOJ wanted to set Petraeus up with a sweet plea deal, which it did. That would have been a lot harder to do if it also admitted that Broadwell’s book included classified information she got from him.

To some degree it doesn’t matter (after all, Leon Panetta got away with classified information too!). But I just want to note that I, for one, don’t actually know whether Broadwell published any information that was classified.

Update: This piece seems to suggest there may be a good deal of classified information in Broadwell’s book. It shows that Broadwell sourced some key discussions from June 2011 involving National Security Council discussions to an interview with Petraeus the day after he retrieved his Black Books which would have included descriptions of those discussions.

Loretta Lynch Is A Dubious Nominee For Attorney General

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CryingJusticeLoretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?

No. Nothing could be further from the truth.

This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).

But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.

And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.

Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.

This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.

And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?

For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.

That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.

The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.

And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.

Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.

Yes, Eric Holder Does Do the Intelligence Community’s Bidding in Leak Prosecutions

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The second-to-last witness in the government’s case against Jeffrey Sterling, FBI Special Agent Ashley Hunt, introduced a number of things she had collected over the course of her 7.5 year investigation into James Risen’s chapter on Operation Merlin. That included a few things — most notably two lines from Risen’s credit card records from 2004 — that in no conceivable way incriminated Sterling.

On November 17, 2004, Risen charged €158.00 at the Hotel Inter-Continental in Vienna, Austria on his credit card (the provider of which DOJ included in its exhibit). On November 21, 2004, Risen put another €215.30 in Inter-Continental charges on his credit card.

What Agent Hunt had proven by highlighting these two details was that James Risen traveled to Vienna as background for a book chapter set in Vienna, and even went to the hotel where Merlin had stayed. None of that did a thing to prove that Sterling leaked Merlin’s travel information — or anything else — to Risen. But the government decided to gratuitously enter into evidence that they had seized years of Risen’s credit card records, and in doing so obtained details of where Risen had traveled (and also, on what days his daughter sent something via FedEx). It wasn’t enough that we knew that already from court filings. DOJ still saw the need to introduce gratuitous notice that they had all of Risen’s credit card statements into the court record.

“We own you,” seemed to be the message to Risen from this flaunting of his credit card records.

But don’t worry, Eric Holder generously decided not to call Risen to testify against Sterling after having hounded him — in this and the warrantless wiretap investigation — for 6 years already, both Jack Goldsmith and Ben Wittes insist.

Both men seem to vastly underestimate how DOJ’s actions in the last decade impact journalism. And both men seem to misunderstand what just happened in the Jeffrey Sterling trial, where DOJ succeeded in exposing a man to 40 years in prison, based largely on metadata, without even having the key pieces of evidence at issue in the case (almost certainly because of CIA’s doing, not Sterling’s).

Uncharacteristically, Wittes’ post is less annoying that Goldsmith’s. Sure, as he did with Laura Poitras, Wittes appointed himself the arbiter of what the NYT should and shouldn’t tolerate from journalists it pays. I will remember that Wittes believes an employee’s intemperate rants on Twitter should get close scrutiny by their employers the next time Wittes makes factually flawed defenses of his torturer buddies on Twitter or complains when Chris Soghoian tweets about Keith Alexander’s operational security sloppiness when he rides on Amtrak.

But Goldsmith writes two paragraphs about leak prosecutions that — while they may bolster Goldsmith’s questionable claims about how journalism functions to rein in the Executive — entirely miss the point. I’ll take them in detail here:

Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary.

The notion that the trial Holder’s DOJ just staged in Eastern District of Virginia was not about “doing the bidding of the intelligence community” makes me tear up I’m laughing so hard. A very key part of the trial was putting Bob S on the stand so he could make claims about Operation Merlin — which turned out not to be backed up by the documentary evidence or his asset’s memory — so as to be able to claim, “We have demonstrated we did this very carefully.” This was a clusterfuck of an operation, but nevertheless DOJ gave Bob S a day and a half to try to claim it wasn’t. DOJ offered CIA this favor while playing their classification games (this was, after all, EDVA, an improper venue for almost all of the charges, but a very good place to get favorable treatment for security theater) so as to avoid explaining — except when it became handy for Condi to blurt something out — why this operation went from being a clandestine information collection operation to something far more sensitive, which is probably the real reason someone other than Sterling leaked the information as the government was trumping up war against Iraq, the next country that got the Merlin treatment.

It’s EDVA, Goldsmith!!! The same place Holder went to have John Durham pretend to investigate CIA’s obstruction of justice until the statute of limitations expired! The same place Holder went to keep investigating and investigating until DOJ could deliver a head, any head, to punish Gitmo defense attorneys’ crazy notion that they might have good reason to want to learn how and who anally raped their clients in the name of rehydration such that they’re still bleeding, 12 years later.

EDVA has become, under Holder, where DOJ goes to obtain arbitrary judgments that ensure CIA and other agencies will never be held accountable for crimes, but some low-level leaker will be delivered up anytime CIA’s crimes or incompetence get exposed.

Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.

Here Goldsmith makes the same nonsensical claim that Steven Aftergood made for The Intercept’s profile of Stephen Kim. The investigation into James Risen’s stories has been going on for twelve years. The investigation into Risen’s reporting on Operation Merlin started over four years before Chelsea Manning even joined the Army, much less started the torrent of leaks Goldsmith claims justifies all these investigations.

And the ratio of leak prosecutions to leaks remains tiny.

This line comes right out of Holder’s defense of his leak prosecutions the other day. And it’s true. But it’s a big part of the problem. Thus far, after all, James Cartwright has not been indicted for allegedly leaking a far more sensitive counter-proliferation program targeting Iran than Sterling purportedly leaked. No one is even considering prosecuting Leon Panetta for leaking details of the Osama bin Laden raid (or classified details in his memoir). I doubt David Petraeus will be indicted either for letting his mistress have access to all his most intimate secrets.

The people who get prosecuted — Jeffrey Sterling, John Kiriakou, Donald Sachtleben, Stephen Kim — they’re not the problem behind this system of leaking and in several cases it’s very clear they’re not even the key leakers: instead, they’re the human detritus the government can dispose of so others will see just how arbitrary the secrecy system really is, by design.

But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.

I suspect Risen would say this is not the case. I suspect a number of the other journalists targeted by DOJ would say the same. That is, the point is not about stopping leaks (though I think the Insider Threat system will make it easier to pick and choose which human detritus will be the next sacrificed to feed this arbitrary system of control), but often as not burning certain journalists or others who don’t play the game.

We own you, investigative journalist, and know what you did in Vienna back in 2004.

Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.

I think here Goldsmith misses the novel theory the government used to convict Sterling, the one Holder has deemed the model to go after others.

Under this theory, journalists will be treated as empty vehicles, and the “cause to leak” language in the Espionage Act will be blown up, so that even completely unclassified conversations may be deemed the cause of an investigative journalist with sources throughout the CIA publishing a story. And the jurisdiction, too, will be blown up, so that so long as a single hairdresser buys a book in EDVA — or maybe MD, who cares, really?!?! — then DOJ can stage their witch hunt in EDVA with all its trappings of security theater.

There are some interesting theories behind the successful prosecution of Sterling for a bunch of metadata. And Goldsmith might at least familiarize himself with where Holder’s DOJ is taking the Espionage Act, because it deserves more scrutiny before the Sterling prosecution is deemed to have done no damage to the journalistic process.

Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder.

Again, the underlying problem is the asymmetry involved. The government keeps hiding more and more stuff — the top officials behind its trust-building CVE program, even! — behind a veil of secrecy. That amid increasingly absurd claims of secrecy — and increasingly persistent evidence the secrecy often serves to hide law-breaking or incompetence, as it did with the Merlin caper — more secrets get out should be no great celebration. It’s the structure of it all — the paranoia, the arbitrariness, and the incompetence behind it all — that really sours any claim to democratic governance. Goldsmith may take solace we’re getting more secrets out, but until we reverse the slide into arbitrariness it heralds, I’m not so sanguine.

During the hearing just after the defense closed in the Sterling trial, there was a fascinating discussion, largely about how DOJ planned to blow up the “cause” language in the Espionage Act to further criminalize just talking to journalists, to criminalize publishing a book and deigning to distribute it in EDVA. The conversation kept coming back to how DOJ had gone from treating Risen as a criminal weeks earlier to treating him as an innocent naif who channeled Sterling’s spying to the unwitting citizens of EDVA. Judge Leonie Brinkema at one point said, “If Risen were not protected by the newsman’s privilege, I suspect he would have been named as a co-conspirator.” “There is no newsman’s privilege,” defense attorney Edward MacMahon pointed out, laughing at the absurdity of claiming there was after the 3 year battle over just that topic. But the exchange hung there, pregnantly, because ultimately branding Risen a criminal — or, barring that, branding having even unclassified conversations with Risen as criminal — was a big part of the point of this trial.

What this prosecution did — what, I believe, it was designed to do — was two-fold. First, burn Risen, burn Risen over 12 long years of investigation during which the counterpart investigation even reportedly seized his phone records. But also, to herald a new interpretation of the Espionage Act that will criminalize even having phone calls with a journalist who has reported on completely unclassified stories involving you in the past.

Update: Year on Risen’s credit card records corrected per Rich.

Why Aren’t Tech Companies Demanding the Common Commercial Service Agreement OLC?

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As noted, Ron Wyden used Eric Holder’s imminent departure as an opportunity to point to some secrets that he believes should be told. One of those pertains to what the 2003 OLC opinion on common commercial service agreements refers to.

Second, I have written to you on multiple occasions about a particular legal opinion from the Justice Department’s Office of Legal Counsel (OLC) interpreting common commercial service agreements. As I have said, I believe that opinion is inconsistent with the public’s understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is party to one of these agreements can consider whether their agreement should be revised or modified.

In her December 2013 confirmation hearing to be General Counsel of the CIA, the deputy head of the OLC stated that she would not rely on this opinion today. While I appreciate her restraint, I believe the wisest course of action would be for you to withdraw and declassify this opinion, so that other government officials are not tempted to rely on it in the future. I urge you to take these actions as soon as practicable, since I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch.

As I laid out in October 2013, Wyden has been trying to liberate this memo since before summer 2012, and he has (as he now is doing) renewed his request every time cybersecurity bills come up (and then some).

Some time last summer, Ron Wyden wrote Attorney General Holder, asking him (for the second time) to declassify and revoke an OLC opinion pertaining to common commercial service agreements. He said at the time the opinion “ha[d] direct relevance to ongoing congressional debates regarding cybersecurity legislation.”

That request would presumably have been made after President Obama’s April 25, 2012 veto threat of CISPA, but at a time when several proposed Cybersecurity bills, with different information sharing structures, were floating around Congress.

Wyden asked for the declassification and withdrawal of the memo again this January as part of his laundry list of requests in advance of John Brennan’s confirmation. Then, after having been silent about this request for 8 months (at least in public), Wyden asked againon September 26.

Since then, we’ve learned that the memo dates to 2003, and was a matter of first impression when it was written.

I’ve been writing about this memo since 2013, but I don’t have the legal support to FOIA something DOJ is obviously pretty embarrassed about.

But why hasn’t big tech? Why haven’t other companies that sign common commercial service agreements? Why hasn’t some lawyered up company — or lawyered up trade group — sued for this thing, as it clearly may affect their businesses?

Or would they just rather prefer not to know?

DOJ Says It’s Not Legally Required to Tell Wyden Whether Executive Branch Conduct Was Legal

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Via Ali Watkins’ story on Dianne Feinstein’s vindication by the Senate parliamentarian, Ron Wyden has written Eric Holder a letter listing all the unfinished business he’d like the Attorney General to finish before going off to his sinecure defending banks (my assessment, not Wyden’s).

Three of the requests are familiar:

  • A request to know the limits of using deadly force against Americans outside of declared war zones
  • A request for the withdrawal and declassification of an OLC opinion on common commercial service agreements
  • A request that Holder share the Torture Report widely so it can be useful (or maybe even just open it)

But a fourth is, as far as I know, new:

I have asked repeatedly over the past several years for the Department of Justice’s opinion on the lawfulness of particular conduct that involved an Executive Branch agency. I finally received a response to these inquiries in June 2014; however the response simply stated that the Department of Justice was not statutorily obligated to respond to my question. I suppose there my not be a particular law that requires the Department to answer this question, but this response is nonetheless clearly troubling. My question was not hypothetical, and I did not ask to see any pre-decisional legal advice — I simply asked whether the Justice Department believed that the specific actions taken in this case were legal. It would be reasonable for the Department to say “Yes, this conduct was lawful” and explain why, or to say “No, this appears to have been unlawful” and take appropriate follow-up action. Refusing to answer at all is highly problematic and clearly undermines effective oversight of government agencies, especially since the actions in question were carried out in secret. For these reasons, I renew my request for an answer to the question, and I hope that you can help provide one.

Uh, with all due respect, Senator, I believe Holder has given you an answer: While I don’t know what the actions in question are, it seems the answer is, “Yes, those actions were illegal, but since we’re not going to do anything about it, we’re not going to tell you that.”

Or perhaps, “Yes, those actions were illegal. But if the President orders them, we don’t consider them illegal.”

Wyden has apparently been asking this for “several years.” While that doesn’t entirely rule out CIA spying on SSCI (which, after all, DOJ has answered by not prosecuting), it seems it is some other action he learned about under Obama’s tenure.

So is DOJ refusing to prosecute some clearly illegal action that happened under Obama?

John Galt Faces Prison For Contaminating West Virginia Water

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Back in January, John Galt proclaimed his independence from pesky regulatory oversight in West Virginia when he contaminated the drinking water supply of over 300,000 residents. Recall that Galt did his damage through his appropriately named corporation, Freedom Industries, where he was using the contaminant to magically make coal “clean”. In a remarkable development, though, we learned yesterday that a federal grand jury has indicted six people associated with Freedom Industries:

A federal grand jury on Wednesday indicted four owners and operators of the company whose toxic chemical spill tainted a West Virginia river in January, forcing a prolonged cutoff of drinking water to nearly 300,000 residents in and around Charleston.

Each was charged with three counts of violating the Clean Water Act, which bars discharges of pollutants without a permit. Their company, Freedom Industries, and its owners and managers did not meet a reasonable standard of care to prevent spills, the indictment stated.

One of those indicted, Gary L. Southern, the company’s president, was also charged with wire fraud, making false statements under oath and bankruptcy fraud. Freedom declared bankruptcy days after the spill.

Actual prison time is at stake in these charges:

Besides Mr. Southern, of Marco Island, Fla., the indictment named three other owners and operators: Dennis P. Farrell, 58, of Charleston; William E. Tis, 56, of Verona, Pa.; and Charles E. Herzing, 63, of McMurray, Pa.

Two others were also charged: Robert J. Reynolds, 63, of Apex, N.C., and Michael E. Burdette, 63, of Dunbar, W.Va. Mr. Reynolds was Freedom’s environmental consultant, and Mr. Burdette managed the tank farm. Mr. Herzing, Mr. Tis and Mr. Farrell sold the tank farm to a Pennsylvania company about a month before the accident.

All six were charged with the negligent discharge of a pollutant, negligent discharge of a refuse matter and violating an environmental permit. The violations carry a maximum penalty of three years in prison, according to a statement issued by the United States attorney for the Southern District of West Virginia.

Southern, on the other hand, faces up to 68 years when the additional ten charges he is facing are factored in.

This is a truly remarkable development. Recall that John Galt got away with killing Texans in the massive fertilizer plant explosion in West, Texas that caused over $100 million in property damage in addition to killing 15 and injuring over 200. That investigation was stymied at almost every turn, and no criminal charges were ever filed unless you count the strange prosecution of one of the first responders for possession of homemade bomb-making materials.

But recall that this is Eric Holder’s “Justice” Department that we are talking about here, so it is worth drilling down below the headlines. If we move to more local reporting on the charges, we find typical Holder behavior when it comes to how the company is being treated:

Also, U.S. Attorney Booth Goodwin charged Freedom Industries, the bankrupt company, with the same three counts of criminal water pollution violations. The company was charged through a document called an information, rather than an indictment, a move that usually indicates the defendant has reached a plea deal with prosecutors.

Mark Welch, Freedom’s chief restructuring officer, confirmed that the company had entered into a plea agreement with federal authorities and said the move was aimed partly at limiting the possible fines and criminal defense costs if the company were to be indicted. Welch, in a prepared statement, said the plea agreement also stipulates that the U.S. Attorney’s Office will not seek restitution from Freedom for victims of the company’s crimes, because of the company’s ongoing bankruptcy proceeding.

“This will permit Freedom to focus its time and limited resources on its environmental cleanup obligations and addressing the claims of its creditors,” Welch said.

In the world of Eric Holder (and John Galt), any claims by creditors who helped Freedom Industries to contaminate the Elk River have higher standing than any mere citizen who was harmed by Freedom.

UN Official: Prosecute “Systematic Crimes and Gross Violations of International Human Rights Law”

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Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)

Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)


Ben Emmerson is the UN’s Special Rapporteur on counterterrorism and human rights. His statement released yesterday in response to the SSCI torture report points out the clear responsibilities that the US has under the Convention Against Torture and other international human rights laws to prosecute not only those who carried out torture, but those who designed the torture program and gave orders for its implementation.

Emmerson opens by noting the delay in release of the report’s summary:

I welcome the belated publication of the summary report by the United States Senate Select Committee on Intelligence into the crimes of torture and enforced disappearance of terrorist suspects by the Bush-era CIA. It has taken four years since the report was finalised to reach this point. The Administration is to be commended for resisting domestic pressure to suppress these important findings.

In my 2013 report* to the Human Rights Council as SpeciaI Rapporteur, I called on the US Government to release the report without further delay, and to ensure that it was published in full, without excessive and unnecessary redactions.

It seems a bit strange to me that Emmerson would commend the “administration” for “resisting domestic pressure to suppress these important findings”. We can only presume that “administration” refers to the Obama administration. It has been clear that in many instances of the struggle by the SSCI to release the report, the Obama administration has come down more on the side of the CIA than the committee. Only if the committee itself is included in Emmerson’s view of the “administration” does the comment make sense.

Emmerson then gets down to business:

The summary of the Feinstein report which was released this afternoon confirms what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law.

The identities of the perpetrators, and many other details, have been redacted in the published summary report but are known to the Select Committee and to those who provided the Committee with information on the programme.

So we know that crimes have been committed. Further, the committee also knows who is responsible for those crimes. What to do about it?

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

Note the language here. Emmerson doesn’t say that those responsible for the crimes should be brought to justice. He says outright that they MUST be brought to justice. Emmerson further points out that being authorized at a high level in the government gives no protection. Further, he notes a “conspiracy” to carry out the crimes.

Emmerson then goes on to destroy Barack Obama’s “look forward” bullshit and John Durham’s coverup disguised as an investigation:

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

Obama, Holder and Durham simply cannot grant immunity for these crimes. International law forbids it. More specifically, the Convention Against Torture, to which the US is a signatory, prohibits it. Similarly, the Convention on Enforced Disappearances also comes into play in the crimes committed by the US and also prevents the granting of immunity that Obama has tried to orchestrate.

Emmerson’s conclusion reiterates those points and provides a warning to those guilty of these crimes:

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.

President Obama made it clear more than five years ago that the US Government recognises the use of waterboarding as torture. There is therefore no excuse for shielding the perpetrators from justice any longer. The US Attorney General is under a legal duty to bring criminal charges against those responsible.

Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the US Department of Justice and the Attorney General.

Emmerson specifically calls out those who planned and authorized the torture as deserving the “heaviest penalties”.

And they need to be careful. Even though they are facing no punishment in the US for their crimes, these criminals can face prosecution should they travel abroad because torture is a crime subject to universal jurisdiction. Under universal jurisdiction, other countries would normally defer to the US for prosecution of crimes carried out by citizens of the US. However, once it is clear that no such prosecutions will take place, other countries are free to act.

Although I’d like to see them inside cells of much smaller dimensions, it appears that for now those who designed the CIA torture program and ordered its implementation are now imprisoned within the borders of the US because they are at risk of real prosecution while traveling outside the borders.

White House Supports USA Freedom Act, with Bates-Clapper Caveats about Amicus

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The White House has come out with an enthusiastic statement supporting USA Freedom Act.

The Administration strongly supports Senate passage of S. 2685, the USA FREEDOM Act. In January, the President called on Congress to enact important changes to the Foreign Intelligence Surveillance Act (FISA) that would keep our Nation safe, while enhancing privacy and better safeguarding our civil liberties. This past spring, a broad bipartisan majority of the House passed a bill that answered the President’s call. S. 2685 carefully builds on the good work done in the House and has won the support of privacy and civil liberties advocates and the private sector, including significant members of the technology community. As the Attorney General and the Director of National Intelligence stated in a letter dated September 2, 2014, the bill is a reasonable compromise that enhances privacy and civil liberties and increases transparency.

The bill strengthens the FISA’s privacy and civil liberties protections, while preserving essential authorities that our intelligence and law enforcement professionals need.

It says the bill ends bulk collection which might be a useful record if the President used a definition besides “without any discriminator,” but that is what he is on the record as meaning by “bulk.”

The bill would prohibit bulk collection through the use of Section 215, FISA pen registers, and National Security Letters while maintaining critical authorities to conduct more targeted collection. The Attorney General and the Director of National Intelligence have indicated that the bill will retain the essential operational capabilities of the existing bulk telephone metadata program while eliminating bulk collection, based on communications providers’ existing practices.

Perhaps the most troubling part of Obama’s statement, however, is its endorsement of John Bates’ language about the amicus as echoed by James Clapper and Eric Holder, which among other things said that the amicus could not be required to represent the interests of civil liberties and privacy.

The bill also authorizes an independent voice in significant cases before the Foreign Intelligence Surveillance Court (FISC) — the Administration is aware of the concerns with regard to this issue, as outlined in the letter from the Attorney General and the Director of National Intelligence, and the Administration anticipates that Congress will address those concerns. Finally, the bill will enhance transparency by expanding the amount of information providers can disclose and increasing public reporting requirements.

In sum, this legislation will help strengthen Americans’ confidence in the Government’s use of these important national security authorities. Without passage of this bill, critical authorities that are appropriately reformed in this legislation could expire next summer. The Administration urges Congress to take action on this legislation now, since delay may subject these important national security authorities to brinksmanship and uncertainty. The Administration urges the Senate to pass the USA FREEDOM Act and for the House to act expeditiously so that the President can sign legislation into law this year. [my emphasis]

As I said here, the designed impotence of the amicus is not a reason to oppose the bill; it’s just a reason to expect to have to wait 9 years before it becomes functional, as happened with PCLOB. Still, it is very very troubling that given all the evidence that the Executive has been abusing the process of the FISC for a decade, the Executive is moving to ensure they’ll still be able to do so.