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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.

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Working Thread on Illegal Wiretap Memo

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As I noted in this post, DOJ has released two of the memos used to authorize the illegal wiretap program. I made some brief comments on the November 2, 2001 John Yoo memo here. This will be a working thread on the May 6, 2004 Jack Goldsmith memo.

P1: Note in the TOC (and in later references), DOJ has redacted the date when the program was modified. We know this date is some time after the March 10, 2004 hospital confrontation. Pretty much the only reason to redact that date is to make it harder to know how long the program operated solely with Bush’s authorization. And the biggest reason to do that is to hide the detail from al-Haramain’s lawyers, because it would add evidence that the phone calls intercepted in early March 2004 were intercepted at a time when the program didn’t have DOJ sanction.

P3: The first redaction on the page is interesting because it seems to qualify what they do after they intercept communications in the US; remember that one of the big conflicts at the hospital confrontation was the data mining they were doing (in defiance of Congress specifically defunding data mining of US citizens).

P3: Note the invocation of 18 USC 2510-2521 in addition to FISA. This makes it sort of explicit they were using other authorization processes for some of this. I’ll come back to this point. But it’s worth noting that the 2010 opinion cleaning up past exigent letter use used 18 USC 2511(2)(f) to do so.

P5-6: Note that footnote 2, which probably describes ongoing air patrol surveillance of the country is redacted. Note, too, that the entire paragraph is classified Secret. Goldsmith was basically using the black (heh) helicopters patrolling the skies–which we could literally hear and see–as basis to rationalize the claim that it was okay for the military to be operating in the US. And the government believes we shouldn’t know that. Moreover, there appears to have been ongoing patrols we weren’t supposed to know about in 2004.

P6: Note how Cap’n Jack asserts that 2001 AUMF is still active in May 2004:

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”).

He could have found any number of sources to support his claim that the 10,000 troops (ah, the good old days) in Afghanistan sustained the AUMF. Instead, he cited a story reporting Pat Tillman was “killed in combat”–itself a story that was the product of elaborate govt propaganda.

P6-7: Note the citation of the Mueller quote from testimony he gave to SSCI on February 24, 2004. That’s interesting timing, because at a February 11, 2004 hearing, Ron Wyden had asked whether Total Information Awareness, which had been explicitly defunded for that fiscal year, at which point Michael Hayden said he wanted to answer in closed session.

Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was “correct that when [TIA] was closed, that several … projects were moved to various intelligence agencies…. I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter’s programs are going on somewhere else.”

Negroponte and Mueller said they didn’t know. But Negroponte’s deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, “I’d like to answer in closed session.” Asked for comment, Wyden’s spokeswoman referred to his hearing statements.”

I wonder if the Mueller briefing Goldsmith cited was from the closed session where DIA and FBI gave their response?

P7: Note the reference to minimization. I believe that’s the first we’ve heard about minimization in the early days of the program. Also note that he directs DOD generally, not NSA specifically, to do the minimization. That’s downright odd. [Update: now, we’ve had discussion about minimization before. See this post.]

P8: Note the fourth redaction on this page, after the words, “without resort to judicial warrants.” It appears that warrants is followed by a period, but that doesn’t make sense as it appears there are a few more words to that sentence. Judicial warrants … “and oversight,” maybe? Any other guesses?

P8: Goldsmith notes that the Gang of Four were briefed on the program “in 2002 and 2003.” As I have noted before, there should have been a briefing in January 2004. Much of the rest of that footnote may well explain how they got out of that briefing.

P9: Note the second redaction, hiding who besides the DCI reviews the threat assessment that justifies the continuation of the program before it goes to OLC. That’s particularly interesting given that the Terrorist Threat Integration System was doing the treat assessment in May 2004, when Goldsmith wrote this opinion. And John Brennan, currently Obama’s Deputy National Security Advisor, was in charge of the TTIC at the time. In any case, it doesn’t seem justifiable to redact who, besides the DCI, does this review. Note that the IG Report also refers OGC attorneys reviewing the the threat assessment to fluff it up if it wasn’t sufficient to justify sustaining the program.

P9: Goldsmith writes:

As explained below, since the inception of [redacted name of program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to hae, multiple redundant plans for executing further attacks with the United States.

See how one illegal program serves to justify another illegal program?

P11: Goldsmith launches his discussion of the changes that took place in March 19 with a discussion of “how the NSA accomplishes the collection activity under [the program].” That might support the datamining aspect, but maybe not.

P15: Note there’s a word after the “Commander in Chief Clause” in the description of the basis Bush invoked to authorize the program on March 11. Wonder what that is?

P16: The modification took place on March 19. Note that it pertained to making it clear “there were reasonable grounds to believe that a communicant was an agent of an international terrorist group …” I’m betting the caveat after that doesn’t ultimately say what Goldsmith would, that the terrorist organization has to target the US.

P16: Note Goldsmith authorizes three activities. One is the authority to “intercept the content of international communications ‘for which … a party to such communication is a group engaged in international terrorism, or activities in preparations 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 action within the United States.”

P17: Goldsmith lists the following opinions related to this program:

  • October 4, 2001
  • November 2, 2001, expressly authorizing a November 2, 2001 authorization
  • October 11, 2002: confirming the application of prior analysis

Note two things. First, this list doesn’t coincide with other lists (Goldsmith ignores the October 23, 2001 4th amendment eliminating one, as well as some “hypothetical ones” in between; the IG Report only talks about the November 4 one, and Bradbury talks about a few more.

Also note the space between the date, October 4, 2001, and the main clause of the sentence, “we evaluated.” One thing I’m increasingly convinced is that the program operated under FISA’s 15-day window until October 3, 2001. So I wonder if that acknowledges that fact?

P18: Note that Goldsmith starts w/12333. That’s the EO that Bush pixie dusted.

P20: The paragraphs that appear in part on this page appear to be misclassified. They both talk exclusively about published legislation. Neither mentions the name of the program. Yet both are classified TS.

P21: Note how Goldsmith introduces his claim that FISA is not exclusive: “We conclude that the Congressional Authorization is critical for [redacted name of program] in two respects.” That reveals how much he reverse his analysis, not looking at what the AUMF said, bu what he needed to justify the program.

P23: My discussion of the newly disclosed OLC opinion discussed in the footnote is here.

P30: The examples Goldsmith uses to show the continuity of SIGINT is terrible cherry picking. How is Jeb Stuart’s personal wiretapper, wiretapping commercially run cables, similar to wiretapping private phone calls? MOre damning still is his lack of any treatment of Vietnam era wiretapping, done under cover of war, but targeting speech.

Note too where Goldsmith highlights the phrase “control all other telecommunications traffic” when discussing WWII surveillance. Since that’s what we think they were doing here, I find the emphasis notable.

P31: Note that Goldsmith refers to the 15-day exemption under FISA; he says “as noted above,” meaning he has already treated this, in what must be a now-redacted section. Particularly given Goldsmith’s discussion of the legislative intent–to give Congress time to alter FISA in time of war–his non-discussion of PATRIOT here is nothing short of dishonest. (He does discuss it later, though.) This allows him to say, “The mere fact that the Authorization does not amend FISA is not material,” without at the same time acknowledging that Congress was at that moment amending FISA! It’s all the more important given the October 4 approval that would have marked the end of the 15-day exemption period.

P31: Note the footnote invoking the Padilla and Hamdi circuit court decisions. On his last day as AAG, Goldsmith wrote an opinion that reviews whether a recent court decision–almost certainly Rasul–affected his analysis. But we’re not being given that opinion.

P32: I wonder how Goldsmith responded to Tom Daschle’s op-ed making it clear that Congress specifically refused action in the US, given that he claims the “deter and prevent acts of international terrorism against the US” amounted to carte blanche to operate in the US.

P32: NOte the reference to the Iraq AUMF–and its invocation of terrorism. That’s relevant not least bc Goldsmith expands the terms of the Afghan AUMF beyond al Qaeda.

P34: Note that the paragraph of this page, discussing a PATRIOT change, is unclassified. The next, also discussing a PATRIOT change, is classified TS. The only plausible explanation I can think of for the the second is to hide from people outside of the compartment how full of shit that second paragraph is.

[Note: I lost a huge chunk of this post right in here–looking to see if I can reconstruct it]

P39: Check out this tautology Goldsmith uses to argue foreign intelligence doesn’t need a warrant:

In foreign intelligence investigations, the targets of surveillance are agents of foreign powers who may be specially trained in concealing their activities from our government and whose activities may be particularly difficult to detect.

Of course, the whole point of this program is to find people who might be agents of foreign powers; we don’t know that they are until the investigation finds them.

P40-41: This is a troubling assertion about Keith:

In addition, there is a further basis on which Keith is readily distinguished. As Keith made clear, one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained, “Fourth Amendment protections become the more necessary when teh targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute when the Government attempts to act under so vague a concept as the power to protect “domestic security.” Keith 407 US at 314.see also id at 120 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.”) Surveillance of domestic groups necessarily raises a First Amendment concern that generally is not present when the subjects of the surveillance are the agents of foreign powers.

Aside from the obvious fact that the surveillance Goldsmith was justifying almost always had a religious component, a lot of the evidence picked up on alleged domestic Islamic terrorists amounts to speech. And often a disagreement about things like the Iraq war. It’s more of the tautological construction, if foreign then not First Amendment, when that is obviously not the case. Note, there’s a big redaction after the passage above which I suspect is nonsense.

P41: Goldsmith:

Second, it also bears noting that in the 1970s the Supreme Court had barely started to develop the “special needs” jurisprudence of warrantless searches under the Fourth Amendment.

I’m gonna have to either return to this or just hope bmaz hits it. It’s like every section of this opinion Goldsmith chooses to deal with a second, exclusive period of history.

P43: Note how Goldsmith pretends Congress passed FISA in 2001, not 1978.

To be more precise, analysis of [redacted–name of program] presents an even narrower question: namely, whether, in the context of an ongoing armed conflict, Congress may, through FISA, impose restrictions on the means by which the Commander in Chief may use the capabilities of the Department of Defense to gather intelligence about the enemy in order to thwart foreign attacks on the United States.

Putting aside the fact that this program identified who the enemy is, as much as collecting information from that enemy, Goldsmith here betrays his task. Not to see whether Bush acted properly in not asking for legislation to amend FISA, but to suggest that FISA is an addition to the already existing program. Which of course it was not.

This is made more clear a few lines later:

In almost every previous instance in which the country has been threatened by war or imminent foreign attack and the President has taken extraordinary measures to secure the national defense, Congress has acted to support the Executive through affirmative legislation granting the President broad wartime powers, or else the Executive has acted as exigent circumstances in the absence of any congressional action whatsoever.

In his book Goldsmith repeatedly says Bush’s (Cheney’s, Addington’s) mistake was in not consulting Congress. And that’s evident here, too: of course Congress made affirmative legislation. It’s called the PATRIOT Act. But for some reason the President refused to ask for these powers.

P46: Note that in his review of enumerated Congressional powers Goldsmith doesn’t consider the power to declare war?

P51: Note the reference to the President’s threat assessment on March 11, 2004. You’d think that’d mention the Madrid bombing that happened that day. But of course at that point Aznar was pretending that ETA caused the bombing, not an al Qaeda inspired–but not AQ direct–group.

P61: I presume Goldsmith didn’t have a straight face when he wrote the last full paragraph trying to distinguish Youngstown–bc Congress gave other alternatives to resolve labor disputes–from FISA, which Congress was actively changing per the Executive’s requests in 2001.

P70ff: Note how here Goldsmith argues not just that FISA can’t restrict POTUS bc of inherent power, but it can’t bc FISA is so onerous that “it ‘render[s] it impossible for the President to perform his constitutionally prescribed functions.’ [Redacted–curious what this cite is] Several factors combine to make the FISA process an insufficient mechanism for responding to the crisis the President has faced in the wake of the September 11 attacks.” It then has a totally redacted discussion about why FISA makes POTUS’ job impossible. This strikes me as the reason why Goldsmith’s innocuous discussion of the switch to 72-hour warrant requirement is classified TS. Because Congress was working to make it less onerous.

P102: Jack Goldsmith, bleeding heart defender of Wall Street:

The nation has already suffered one attack that disrupted the Nation’s financial center for days and that successfully struck at the command and control center for the Nation’s military.

Glad to see those 3000 people didn’t weigh in here. I’ll return to this logic in upcoming days. After all, if the risk of disruption on Wall Street gives the President super-human powers, then shouldn’t we be using them to reel in Wall Street now?

P105: Goldsmith’s stawmen:

Thus, a program of surveillance that operated by listening to the content of every telephone call in the United States in order to find those calls that might relate to terrorism would require us to consider a rather different balance here.

Right. They’re not taking “content” of every telephone call. They’re taking data.

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Newly Released OLC Opinion Reveals How Yoo Relied on Eliminating Fourth Amendment to Wiretap Illegally

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As Josh Gerstein and Jack Goldsmith note, DOJ just released two of the opinions underlying the warrantless wiretap programs. They both focus on the May 6, 2004 opinion Goldsmith wrote in the wake of the hospital confrontation; I’ll have far more to say about that opinion later today and/or tomorrow.

But I wanted to look at what the highly redacted opinion John Yoo wrote on November 2, 2001 tells us.

The opinion is so completely redacted we only get snippets. Those snippets are, in part:

FISA only provides safe harbor for electronic surveillance, and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

Thus, unless Congress made a clear statement that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

To understand what those quotes mean, it helps to recall that on October 23, 2001, John Yoo and Robert Delahunty wrote another memo assessing whether the military could deploy in the US in a war against terrorists. It concludes, in part, that,

Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation’s recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.

Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.

It relies on the hypothetical in which a military commander searches an entire apartment building for the WMD inside.

Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside.

As I have suggested in the past, it helps to replace “apartment building” with “email server” to understand the implications of such an opinion given that our wiretapping is done by military commanders at the NSA.

In other words, on October 23, 2001, Yoo wrote an opinion largely justifying searches by military commanders domestically.

And then on November 2, 2001, he interpreted wiretapping as a search (presumably arguing that since we were vacuuming up all data signals, we were obtaining physical possession of them that thereby got around restrictions on electronic surveillance, at least in Yoo’s addled little mind).

Of course, the Fourth Amendment opinion is utterly ridiculous. But they were still relying on it until October 6, 2008, even while equivocating to members of Congress about doing so.

So you see, Cheney’s illegal wiretapping program was totally legal. What you didn’t know, though, is that the Fourth Amendment is just a quaint artifact of time before 9/11.

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Spain Will Investigate Gitmo Torture

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The High Court in Spain has decided that it can proceed with its investigation of the torture that Lahcen Ikassrien alleges he suffered at Gitmo.

A Spanish court Friday agreed to investigate a complaint by a Moroccan who said he was tortured while in the US detention camp in Guantanamo Bay, Cuba, judicial sources said.

The National Court said it was competent to take the case as the complainant, Lahcen Ikassrien, has been living in Spain for 13 years.

[snip]

The judges Friday rejected an appeal by prosecutors who sought to have the case thrown out on the grounds that Ikassrien did not have sufficient links with Spain.

Here’s what the Center for Constitutional Rights has to say about the news:

This is a monumental decision that will enable a Spanish judge to continue a case on the “authorized and systematic plan of torture and ill treatment” by U.S. officials at Guantanamo. Geoffrey Miller, the former commanding officer at Guantánamo, has already been implicated, and the case will surely move up the chain of command. Since the U.S. government has not only failed to investigate the illegal actions of its own officials and, according to diplomatic cables released by WikiLeaks,  also sought to interfere in the Spanish judicial process and stop the case from proceeding, this will be the first real investigation of the U.S. torture program. This is a victory for accountability and a blow against impunity. The Center for Constitutional Rights applauds the Spanish courts for not bowing to political pressure and for undertaking what may be the most important investigation in decades.

As always, it pays to be skeptical that the US won’t still find a way to quash this investigation. But given the exposure WikiLeaks gave DOJ’s prior interventions with Spanish officials, they may have overplayed their hand.Also note, this is not the case that implicates the 6 lawyers who approved torture. I suspect that the pending suits against John Yoo and others might give the DOJ the ability to claim that crime is still being investigated here in the states.

Update: CCR quote updated.

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Rummy Lawyers Up … To Defend Ordering Death Threats?

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Josh Gerstein reports that the government has withdrawn from defending Donald Rumsfeld and others in the Jose Padilla suit Judge Richard Mark Gergel dismissed the other day. (h/t MD)

The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz – in a lawsuit by Al Qaeda operative Jose Padilla, who spent years behind bars without charges in conditions his lawyers compare to torture.

Charles Miller, a Justice Department spokesman, confirmed Tuesday that the government has agreed to retain private lawyers for the officials, at a cost of up to $200 per hour. Miller said “conflicts concerns” prompted the decision. He did not elaborate.

One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”

That’s mighty interesting. Because the last time DOJ withdrew from defending such a high profile defendant was John Yoo, in the partner lawsuit in this case, in which Padilla is suing Yoo for his horrible OLC memos. The DOJ withdrew from defending Yoo just two weeks before DOJ finished the OPR Report (on July 29, 2009) finding grave problems with the OLC memos John Yoo wrote authorizing torture. The very memos Padilla sued Yoo about.

Which makes this observation from Gerstein and Stephen Gillers all the more interesting.

Legal ethics experts said the Justice Department’s withdrawal could stem from qualms about a full-throated defense of Padilla’s treatment while in military custody. His lawyers claim that Padilla’s captors in the brig subjected him to abuse including sensory deprivation, prolonged isolation, imminent death threats, forced drugging and interference with his practice of Islam.

“Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University. [my emphasis]

That same OPR Report would virtually prohibit DOJ from helping Rummy and others defend the claim that death threats used on Padilla were legal. After all, we know that mock burials–a kind of death threat–were just about the only thing that John Yoo said was illegal!

Now, as it happens, Judge Collyer, in the ACLU’s FOIA case, appears to have made a really ridiculous argument that DOJ’s declassification of that reference to mock burial does not amount to an acknowledgment that Yoo judged death threats, more generally, to be illegal. And the death threats used against Rahim al-Nashiri at least allegedly are still being investigated.

But it would be mighty interesting if this were all about death threats. Padilla’s lawyers are suing because–among other reasons–Rummy ordered up treatment that included death threats. And that’s the only thing our Department of Justice has deemed illegal.

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Judge: Government Can Shield Its Conversations about Engaging in Torture

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Josh Gerstein reports that a Federal Judge has rejected ACLU’s effort to get the government to remove more of the redactions in the OPR Report on the torture memos. Judge Rosemary Collyer basically argued that the President’s need to get candid advice on how to make torture legal trumps citizens’ right to know about such illegal activity.

Rather than arguing that exemptions (b)(1) and (3) are inapplicable under the Executive Order or the proffered statutes, Plaintiffs argue that the substance of the redactions: (1) the names of the detainees; and (2) the “actual and potential implementation” of “enhanced interrogation techniques,” including “conditions of confinement” that functioned as part of the “enhanced interrogation techniques,” are unlawful, and therefore fall outside the protection of “intelligence sources and methods” granted by those exemptions. Pls.’ Mem. at 11–24. But, as recently stated by the D.C. Circuit, the illegality of information is immaterial to the classification of such information under exemptions (b)(1) and (3) as intelligent sources or methods.

[snip]

While the Court recognizes the public’s interest, this interest does not overcome the need for frank discussions on serious issues that confront a President. Without a free and candid dialectic, the President cannot be properly armed with the tools required to make difficult decisions on consequential issues. Because the declaration sufficiently details its rationale for redaction, and because the public’s interest does not overcome the privilege in this case, the Court finds that Defendant has satisfied its burden as to the limited redactions withheld pursuant to the presidential communications privilege.

Mind you, the Judge is reading broadly here. For at least one of the meetings, we have evidence a decision was made without the input of the President. Yet she has interpreted meetings of Administration officials where Bush was absent as Presidential communications.

So in reality, she’s not just shielding Bush’s decisions, she’s shielding Cheney’s and Alberto Gonzales’ decisions as well. Eh, I guess she thinks Cheney was really in charge?

Where Judge Collyer’s opinion gets really crazy is where she accepts the government’s argument that, having left its discussion about “mock burial” unredacted in one instance, it does not have to reveal the other instances.

Plaintiffs next argue that the name of the interrogation technique that the CIA considered using, i.e. “mock burial,” has already been unclassifed and thus should be disclosed. It is true that when the government has officially acknowledged information, a FOIA plaintiff may compel disclosure of that information even over an agency’s otherwise valid exemption claim. See Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765. For information to qualify as “officially acknowledged,” however, it must satisfy three criteria: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure. Id. After reviewing additional information in camera, the Court finds that the redacted information does not match the very broad information previously disclosed. Due to the specificity and context of the redacted information, coupled with the agency affidavit that affirmatively states that: “notwithstanding these prior disclosures (which I took into account when reviewing the Report), many details of the detention and interrogation program and the intelligence activities undertaken in support of it remain classified,” Payne Decl. ¶ 28, the Court is satisfied that this redacted information has not been already “officially acknowledged,” and thus is appropriately redacted pursuant to exemptions (b)(1) and (3) as “intelligent sources or methods.”

Maybe this is particularly sensitive because they actually did use mock burial and mock executions with detainees but didn’t prosecute? Or maybe the CIA just asked her, on the basis that they sometimes referred to mock execution and other times referred to mock burial and other times referred to death threats, these are different specifics?

It gets worse. If you want to ruin your appetite, click through and see how she justified sustaining the redactions of Jennifer Koester’s name.

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Dear Judge Hellerstein: Ask About the OLC Torture Documents, Too

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On Friday, Judge Alvin Hellerstein had a hearing to figure out how to end the contempt suit the ACLU brought against the CIA for destroying the torture tapes. The ACLU asked that he hold the CIA in contempt. Hellerstein said that wouldn’t serve much purpose. The ACLU suggested that he could hold individuals–presumably meaning Jose Rodriguez–in contempt. In the end, Hellerstein asked the two sides to brief him with suggestions. He seems likely, however, to do two things:

  • Require the CIA to do a report for him to explain how they’ll prevent such a thing from happening in the future
  • Meet with John Durham to hear what he learned in his investigation and make as much of that public as possible

Now, I’m all in favor of getting a very complete report very public report of how the CIA destroyed evidence of torture. The citizens of this country deserve–at the very least–an overview of the investigation and a clear explanation of the roles of the public figures like Porter Goss and John Rizzo. We deserve to know what John McPherson said about the earlier damage done to the torture tapes after John Durham immunized him–and whether Jose Rodriguez and George Tenet pressured him to lie about it. We deserve to know how this relates to all the lies CIA told Congress. We deserve to know each point when the White House got involved in this process.

But I bet you a quarter that Durham will say he can’t make any of this public, because of that mythic ongoing investigation into torture.

It’s what they do.

But as for the homework assignment Hellerstein plans on giving the CIA, to provide him with a report that will convince them they will prevent this kind of evidence disappearing in the future?

It has to go further than the torture tapes themselves.

As I cataloged last year, a great deal of evidence pertaining to torture disappeared over the years:

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Gitmo commander Mike Dunlavey’s paper trail documenting the torture discussions surrounding Mohammed al-Qahtani “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

While we have no idea what, if anything, got destroyed in Cheney’s fire, we do know that CIA, DOD, DOJ, and the State Department (along with whoever owned the server on which John Yoo sent his most classified emails about torture) all somehow “lost” evidence pertaining to torture. It’s not just CIA’s problem, it’s the entire executive branch, seemingly losing torture evidence left and right.

And at the very least, Hellerstein ought to demand the very same kind of report from DOJ as he’s asking for from CIA. I mean, has DOJ done anything to make sure the drafts that go into our secret legal opinions authorizing the executive branch to ignore the law don’t disappear, as they did here?? Has DOJ done even the presumably minimal things CIA has done to make sure such documents don’t keep disappearing when they become inconvenient or dangerous? And what about John Yoo’s emails? What has DOJ done, Judge Hellerstein should ask, to find John Yoo’s missing emails and make sure similar emails don’t go missing in the future?

It’s not just the CIA that treated Judge Hellerstein’s order with contempt. So did DOJ. And yet our Justice Department is not even being held to the very low standard that our nation’s spooks are.

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DOJ Investigations into Torture as a Diplomatic Stunt

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I’m back into moving hell this week, so I haven’t looked as closely at all the WikiLeak cables that have come out. But I wanted to add one point to David Corn’s story on a cable showing the discussions about a potential Spanish prosecution of our torture lawyers. As Corn describes, the cable chronicles a series of efforts in April 2009–to pressure the Spanish government to quash any prosecution in Spanish courts.

Now, it’s worth noting the timing of the cable: April 17, 2009. That is, the day after the Administration released the torture memos. That is, the big piece of news (aside from the chronology of Republican efforts to quash an investigation)–the Spanish Attorney General Candido Conde Pumpido’s announcement on April 16 that he would not support a criminal complaint–happened almost simultaneously with the release of the memos that would provide a great deal of evidence for a case against John Yoo, who was one of the six being investigated. The cable was probably even sent before–but not by much–Obama released a statement saying,

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

[snip]

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again. [my emphasis]

Which is why I think the most critical passages of this cable (which includes DOJ among its recipients) are these ones:

Meanwhile, the Embassy has been involved in DOJ-led talks to have [Chief Prosecutor Jose] Zaragoza – who attended the April 16 press conference – lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza’s wife, who is Conde Pumpido’s chief of staff, would reportedly be one of the four.

[snip]

Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action. [my emphasis]

That is, within the larger context of a discussion of past efforts to pressure the Spanish not to investigate, the cable points to the person whom the US could leverage–Zaragoza–and describes the best means to do so. Zaragoza, the cable makes clear, is telling the US that the best way to halt the Spanish investigation would be to show that “a proceeding regarding this matter were underway in the U.S.”

That was on April 17, the day Obama said there would be no prosecutions. It discussed a meeting between Zaragoza and either David Ogden or Eric Holder to take place in May, at which point the OPR investigation was still pending. And then less than a month after the OPR Report concluding (finding that John Yoo was an idiot, but not criminally or unethically so), Eric Holder announced the Durham investigation into torture. The one for which the primary basis expired with no charges recently. But the same one DOJ claims is ongoing. The one that Harold Koh pointed to–in another diplomatic venue–so as to be able to say with a straight face that the US considers waterboarding to be illegal.

Harold Koh, legal adviser at the US State Department, said on the sidelines of a UN Human Rights Council meeting in Geneva that “there has been a turning of the page” under President Barack Obama.

“I think that the Obama administration defines waterboarding as torture as a matter of law under the convention against torture and as part of our legal obligation… it’s not a policy choice,” Koh told journalists after being asked about the report.

Asked whether the United States was still considering investigation or federal prosecution of those who might have ordered such a practice in the past, Koh said the matter was being examined by Special Prosecutor John Durham in Connecticut.

“Those investigations are ongoing. So the question is not whether they would consider it, they’re going on right now,” he explained.

In other words, what this cable shows is the genesis of the plan–on the day after the torture memos were released–to forestall international investigations of US torture by claiming that the US is itself conducting an investigation. It’s a claim that continues to this day.

It’s not a surprise that the Obama Administration has been pointing to its own investigations–credible or not–to persuade the international community not to hold our torturers accountable. But it is useful to see how the diplomats and the lawyers first hatched that plan.

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Bush Admits to Approving Torture–But Which Use of It?

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The WaPo reports that Bush, in his book, admits to approving waterboarding.

In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

At one level, this is thoroughly unsurprising. We know the Bush Administration very deliberately implemented torture, so it’s unsurprising to hear that it was approved by the President.

But–at least as Jeffrey Smith relays the admission from Bush–it raises as many questions as it does answers.

It appears that Bush admits to approving torture for use with Khalid Sheikh Mohammed. That is, he approved torture sometime around March 1, 2003, when KSM was captured.

That date is itself very significant. After all, on February 5, 2003, the first Democrat (Jane Harman) was briefed that the CIA had used waterboarding. Her response was a letter, objecting not just to the destruction of the torture tapes, but also asking specifically whether Bush had signed off on torture.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In response, CIA appears to have met with the White House around February 19, ostensibly to talk about an appropriate response. They also appear to have consulted with the White House on how they should record the results of the Gang of 4 briefings from that month; in the end, they only recorded the outcome of the Senate briefing–which Jay Rockefeller did not attend and at which Pat Roberts is recorded to have signed off not just on torture, but on destroying the torture tapes depicting that torture. In other words, for much of February 2003, CIA was working closely with the White House to create a false appearance of Congressional approval for torture, even while they were specifically refusing to give Congress something akin to a Finding making it clear the President had signed off on that torture.

And now we come to find out that’s precisely the period during which–at least according to Bush–he approved torture.

But note what that leaves out. At least from Smith’s description, it appears that Bush says nothing about approving the waterboarding of Abu Zubaydah (nor the reported waterboarding of Ibn Sheikh al-Libi). Mind you, Ron Suskind has reported that Bush was intimately, almost gleefully, involved in ordering torture for Abu Zubaydah.

But Bush doesn’t cop to that in his book.

Now, there may be good reason for that. After all, John Yoo had not yet written the memo claiming that waterboarding did not amount to torture at the time Abu Zubaydah was first tortured.

Moreover, there’s the whole issue of the approval method for the torture that occurred before August 1, 2002.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

According to multiple reports, the White House–Alberto Gonzales at least, if not his boss–approved the torture of Abu Zubaydah on a daily basis. And when you read the Bybee Memo and the OPR Report on it, it’s very clear that the memo carved out legal authorization specifically for the torture directly authorized by the President. Indeed, the White House’s prior approval for torture–potentially up to and including waterboarding–may explain the urgency behind the memo in the first place, to provide retroactive legal cover for Bush’s unilateral disregard for US laws prohibiting torture.

In other words, Bush has admitted to approving torture in 2003. But that likely obfuscates his earlier approval for torture at a time when he had no legal cover for doing so.

In other news, the statute of limitations on the torture tape destruction expires in just three or four days. Yet we’ve got silence coming from John Durham.

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Working Thread: John Yoo’s Emails

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At Rosalind’s request, I’m putting up this working thread on the emails that OLC just turned over to CREW.

There’s nothing all that exciting there because this search did not include “paper or electronic documents of Mr. Yoo available elsewhere in the Department.” Like on the classified servers.

I’m actually on strike until I get a non-Scribd copy (you can download a zipped file–thanks to MadDog–here). Why do NGOs insist on putting stuff on the increasingly unworkable Scribd?

But if you happen to LIKE Scribd, here are the emails.

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