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The Charlie-Savage-Used-to-Be-Richard-Lugar’s-Intern SFRC Libya Hearing

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Boy has Charlie Savage caused a headache for Barack Obama and Harold Koh.

The Senate Foreign Relations Committee had a hearing to grill Koh today, in part, because of Savage’s report that Obama overrode OLC, DOJ, and DOD lawyers in deciding that we are not engaged in “hostilities” with Libya and therefore he can blow off the requirements of the War Powers Resolution. Granted, the Obama Administration limited the headache by having just Koh, who sided with Obama in the dispute, and not those lawyers who were overridden, appear at the hearing. Committee Chair John Kerry admitted they had been invited, but declined to attend.

The issue of how Obama came to claim Libya did not involve “hostilities,” by itself, had Koh speaking in circles worthy of his former student, John Yoo.

But what really made things difficult was Savage’s 2007 report on what candidate Barack Obama believed about a President’s war powers. In response to Savage’s question about whether or not the President could unilaterally bomb Iran, the constitutional professor presidential candidate responded,

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Richard Lugar–who by partnering with Senator Obama on a key foreign relations law gave him some credibility in the area–started the hearing by citing both Savage’s article citing the wisdom of candidate Obama and the one depicting President Obama overriding key lawyers on this issue.

It was about that point of the hearing where Charlie Savage revealed, via Twitter, that 15 years ago he served as an intern in Lugar’s office.

When Jim Risch raised the same quote from candidate Obama (Savage said nothing about interning for Risch), the lawyer now sanctioning Obama’s curious definition of hostilities said that candidate Obama’s 2007 stance on presidential war powers was legally incorrect.

So we’ve learned today that 2007 Harold Koh didn’t agree with what 2007 Charlie Savage reported 2007 Barack Obama believed about the law. But in 2011, Savage’s report made clear, 2011 Koh is the key administration lawyer who agrees with 2011 Obama’s views on the law.

Why Didn’t We Ask China to Find Scooter Libby’s Missing Plame Leak E-Mails?

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WSJ has an article reporting on the purportedly Chinese-launched GMail hacks that targeted top White House officials.

The article is interesting not because it claims the Chinese want to hack top officials. Who do you think they’d be most interested in hacking?

Rather, the article is interesting for some of the implications bandied about in the article. For example, Darrell Issa and CREW’s Melanie Sloan suggest the only reason the Chinese would hack the GMail accounts of White House officials is if those people were improperly conducting official business on GMail.

“If all White House officials were following rules prohibiting the use of personal email for official business, there would simply be no sensitive information to find,” said Rep. Darrell Issa, Republican chairman of the House Oversight and Government Reform Committee, and a frequent thorn in the Obama administration’s side. “Unfortunately, we know that not everyone at the White House follows those rules and that creates an unnecessary risk.”

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group, said the hacking “suggests China believes government officials are using their personal accounts for official business, because I doubt they were looking for their weekend plans or a babysitter’s schedule. Presumably, the Chinese wouldn’t have done this if they weren’t getting something.”

More plausible is the suggestion that the Chinese were phishing for information they could then use to compromise other accounts.

Stewart Baker, a former homeland security official in the Bush administration, said he suspects the ultimate goal of the hacking may have been to use the email accounts as a stepping stone to penetrate the officials’ home computers.

“If you can compromise that machine, you may well be able to access the communications they are having with the office,” said Mr. Baker.

I’m most interested in all the assumptions here, that a bunch of Chinese hackers know precisely how the White House email system works. If that’s true, why haven’t we asked the Chinese to turn over the emails OVP deleted from the first days of the Plame leak investigation? And why haven’t we asked the Chinese to turn over all those emails hidden on the RNC’s server? Maybe they can also help us find all of John Yoo’s torture emails?

Given how common it is, these days, for top officials to just delete their most inconvenient emails, I’m thinking American citizens ought to invite Chinese hackers to help us reclaim all the official records our overlords try to destroy.

As Expected, DOD Charges al-Nashiri; Will the US Also Charge His Torturer?

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DOD has filed charges against Abd al Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing. (h/t jl)

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

Now, aside from the question of whether it is illegal to target a series of military targets, I have no problem with the government finally charging al-Nashiri.

But I wonder whether the government is also, finally, going to charge the people who staged a mock execution using a power drill against al-Nashiri–basically doing the one thing even John Yoo said would be illegal? Last we heard, after all, Albert, who staged the mock execution, was training CIA officers. And Albert’s supervisor, Ron, now heads CIA’s European Division. And while the US told Spain back in March that they were still investigating, the 8 year statute of limitations on torture that occurred before January 28, 2003 would have already expired.

As with all their other torture cases, they’re just letting the statutes expire.

So congratulations, DOD, for finally charging one of the alleged worst of the worst. Now when will the government charge those who tortured al-Nashiri?

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

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Update: Meanwhile, the Spanish judge threw out the case.

A SPANISH judge overnight dismissed a complaint filed against former top US officials over alleged torture at the Guantanamo Bay detention camp. Judge Eloy Velasco decided to throw out the case as he said the US justice system is competent to handle any such complaint.

The last time Spain considered investigating American torture, DOJ and Spain’s Chief Prosecutor Jose Zaragoza worked together to find a way for Spain to decline the case: shortly after Zaragoza told us that “if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain,” Eric Holder asked John Durham to investigate torture. There’s no visible sign in the least, mind you, that Durham has investigated the crimes in his mandate (which includes, among other things, the use of death threats against Abd al Rahim al-Nashiri and the manslaughter of Gul Rahman in Afghan’s Salt Pit). But his investigation serves as a convenient diplomatic stunt to shield American torture from Spanish law.

DOJ attempts to stave off Spanish investigations by claiming we investigate torture

DOJ’s back in the diplomatic stunt business with a letter attempting to convince Spain to drop its investigations of the lawyers who authorized torture.

We understand from Judge Velasco’s request that a criminal complaint has been made by the Association for the Dignity of Spanish Prisoners, claiming that the United States, as part of a strategy in its conflict with the Taliban and Al Qaeda and its affiliates, sanctioned a series of executive orders supported by legal memoranda drawn up by the above-listed persons and their legal counsel and advisors, authorizing interrogation techniques in violation of international conventions in force. We have also been advised that the complaint further alleges that U.S. government personnel used the memoranda as a legal basis to conduct interrogations using these illegal techniques upon persons suspected of acting in concert with Al Qaeda and the Taliban. In the request, Judge Velasco seeks information indicating whether any U.S. authority has instituted investigations or proceedings in connection with the facts describes in the above-referenced complaint, and, if so, the specific authority (administrative or judicial) that has dealt or is dealing with such matters. The request further notes that if the facts are currently being investigated by U.S. authorities, that the referenced complaint will be sent to the United States in order that the facts reported therein may be investigated by the United States.

There’s a lot that is misleading about DOJ’s response letter. But one of its key strategies is badly fraudulent: the centrality of its focus on David Passaro’s conviction for assault. The letter boasts:

In 2003 [EW: it was 2004], the U.S. Department of Justice brought criminal charges against Passaro, a CIA contractor accused of brutally assaulting a detainee in Afghanistan in 2003. The CIA described his conduct as “unlawful, reprehensible, and neither authorized nor condoned by the Agency.” The then Attorney General stated that “the United States will not tolerate criminal acts of brutality and violence against detainees….” And the U.S. Attorney noted that the extraterritorial jurisdiction exercised by the United States is “[n]ot only vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality.” See press release at http://www.justice.gov/opa/pr2004/June/04_crm_414.htm, a copy of which is annexed as Attachment A hereto. Following a jury trial, Passaro was convicted of felony assault. On August 10, 2009, the United States Court of Appeals for the Fourth Circuit upheld the conviction, holding that a U.S. federal court has jurisdiction over the trial of an American citizen for committing assaults on the premised of U.S. military missions abroad. The full opinion of the court is annexed as Attachment B hereto. In February 2010, the U.S. Supreme Court refused to hear an appeal by Passaro. Passaro was sentenced to 8 years and 4 months in prison. [EW: his sentence was reduced to 80 months on appeal.]

But there’s a lot that’s wrong with this boast, aside from the error of date and the representation that Passaro’s ultimate sentence was 20 months longer than it ultimately was.

There were irregularities with Passaro’s trial

As I’ve described, Passaro was charged and convicted with assault that led to the death of a suspect Afghan insurgent, Ahmed Wali, at Asadabad firebase on June 21, 2003. There’s a lot that’s funky about Passaro’s case: The military prevented any autopsy on Wali, making it impossible for Passaro to refute arguments the government made about cause of death. There was a Special Forces person with access to Wali whose role was never explored at trial, and the two guards who had custody (and unsupervised access) to Wali during the period leading up to his death were magically assigned to duty in Alaska during Passaro’s trial, making them unavailable to be cross-examined during the trial.

But the central problem with Passaro’s conviction is that the government withheld all the evidence he asked for that would have shown that, even if his treatment of Wali did lead to his death, it had been officially sanctioned under the CIA’s detention policy. And that evidence goes straight to John Yoo’s role in sanctioning torture.

Passaro was denied directly responsive evidence that goes to heart of Yoo’s role in torture

Passaro attempted to use a public authority defense, basically arguing he had been ordered to use any force he used with Wali. In addition to asking for evidence on SERE training–indicating that Passaro knew well the CIA, with John Yoo’s sanction, had used SERE as the basis for its interrogation program–Passaro asked for (in part):

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

In response, the government gave Passaro an otherwise never-released guidance [see PDF 21] which the CIPA summary claimed was “an excerpt of guidance provided to the field on 03 December 2002 in support of ongoing CIA operations in Afghanistan and along the Pakistan border” which read,

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Note the date: December 3, 2002. But remember, Wali died on June 21, 2003. And in between the time that guidance was issued and the time when Wali died, CIA issued four more documents that were directly responsive to Passaro’s request but which the government didn’t turn over (and which weren’t released in this form until several weeks after the Appeals decision cited in DOJ’s letter):

  • CIA’s Guidelines on Confinement, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • CIA’s Guidelines on Interrogation, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • The Bullet Point document created by the CounterTerrorism Center with John Yoo’s involvement, delivered from CIA General Counsel Scott Muller to John Yoo on April 28, 2003
  • The Bullet Point document, described as a “final summary” sent from CTC to OLC’s Patrick Philbin on June 16, 2003

Between the Tenet Guidelines and the Bullet Points, a number of the actions for which Passaro was convicted were sanctioned by the CIA at the time Wali died.

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SWIFT and the Asymmetric Control of Data

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I’ve been thinking a lot about SWIFT lately. Partly that’s because of the renewed discussion on how some big banks relied on cash from drug cartels to survive as the housing bubble began to pop. Partly that’s because of advance publicity for Nicholas Shaxson’s Treasure Islands and coverage of corporate tax dodging. And partly it’s because of this piece, declaring privacy dead without realizing that privacy is only dead for the little people.

You see, I’m increasingly convinced SWIFT will one day be the ultimate battleground over whether the US government can just suck up and analyze all the data it wants.

As a reminder, SWIFT (or Society for Worldwide Interbank Financial Telecommunicatiom) is the online messaging system the world’s finance industry uses to transfer funds internationally. It records the flows of trillions of dollars each day.

It first got big news coverage when Eric Lichtblau and James Risen reported on how our government uses it to track terrorist financing. But of course, the database tracks all sorts of financial flows, not just terrorist financing. Thus, it could be used to track drug finance, tax cheats (both corporate and individual), and the looting of various nations’ riches by their elites.

Swift, a former government official said, was “the mother lode, the Rosetta stone” for financial data.

Indeed, according to Lichtblau’s Bush’s Law, the database appears to track even more information than tax havens would ever collect.

[T]he routing instructions that the company used to move money around the globe often included much more detailed data than any other system: passport information, phone numbers and local addresses, critical identifying information about the senders and the recipients, the purpose of the transaction, and more. (243)

In a world where–as described in Shaxson’s book–our financial system largely runs on the strategic shifting of money behind the cloak of corporate anonymity or secret back accounts, SWIFT appears to be the one place where there is full transparency.

The US and UK in particular, according to Shaxson, have used the secrecy that corporate laws and associated tax havens can offer to sustain their hegemonic position in the world. As we saw, giving a bunch of drug cartels means to launder their money allowed Wachovia to survive for years after the time when it should have collapsed; the US and UK are just larger versions of the same gimmick.

Which is why, I’ve become convinced, the response to NYT’s reporting on SWIFT was (and remains) so much more intense than even their exposure of the illegal wiretap program. The shell game of international finance only works so long as we sustain the myth that money moves in secret; but of course there has to be one place, like SWIFT, where those secrets are revealed. And so, in revealing that the US was using SWIFT to track terror financing, the NYT was also making it clear that there is such a window of transparency on a purportedly secret system.

And the CIA has, alone among the world’s intelligence services, access to it.

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In Re Sealed Case and the Goldsmith Memo

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

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

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

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

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

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

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

The In Re Sealed Case Citations

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

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

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

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

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

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

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

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

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

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

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

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

It repeats that very reference later on the same page.

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

questioning”).

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

And then borrows from what it claims the FISCR concluded.

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

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

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

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

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

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

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

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The Abu Zubaydah Standard in Obama’s Miranda Memo

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Here are the claims the Bybee Two memo premised its authorization to torture Abu Zubaydah on:

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization,

[snip]

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Compare that with the description of an “operational terrorist” whose Miranda rights may be delayed under a memo issued by DOJ last October.

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The two claimed preconditions for torturing AZ–that he was a high ranking member of an international terrorist group and knowledgeable about operational details of pending terrorist operations–are exactly the same as two possible premises (of three) for delaying an American detainee’s Miranda warning.

Only, with AZ, the CIA had to send John Yoo a bunch of information purportedly proving their claims before they got to torture AZ.

Here’s how such claims will be checked under the Miranda exception.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval.

[snip]

As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

In other words, while FBI says it’d be nice if the folks holding the detainee consult with the lawyers in DC before delaying a suspect’s Miranda warning, they provide a great big invitation–“the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public”–for them not to do so. And far be it for FBI Agents to refuse such a kind invitation!

So an FBI Agent in the field can decide on his own (for reasons of urgency, you understand) not to Mirandize a guy that he has decided, with no review, is a top ranking terrorist or knows about an upcoming terrorist attack. And a plain reading of the text doesn’t even require that the terrorist attack be related to international terrorism; it could be an environmental attack, for example. If an FBI Agent believes some vegan wants to free a bunch of pigs used in experimentation, he can declare it a planned terrorist attack and hold the vegan without Miranda warning. Since Main DOJ does not require that it oversee this process, it will be able to claim it has no responsibility for any abuses that result.

It will look like this in the eventual DOJ IG Report: “No one could have predicted that FBI Agents would abuse a policy written so broadly.”

Now, as it happens, when the government started making claims in court about AZ, in a venue in which both an independent judge and AZ’s lawyer could challenge what evidence the government actually turned over, the government chose not to claim that he was either a top-ranking al Qaeda member or aware of upcoming terrorist plots.

There’s good reason they didn’t make such claims. That’s because he wasn’t. As the government eventually admitted to AZ, after they waterboarded him 83 times. And after spending the better part of a summer chasing down the terrorist plots he invented to try to get the torture to stop.

The CIA IG Report explained how it was that the government came to have such a mistaken understanding of AZ and others.

The Agency lacked adequate knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. This lack of knowledge led analysts to speculate about what a detainee “should know,” vice information the analyst could objectively demonstrate the detainee did know.

But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.

Now, don’t get me wrong. I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.

But consider the one detainee known to be treated in such a fashion: Faisal Shahzad. The government claimed a central reason why they had to hold him without charge is that they needed unfettered access to him, 24/7, so they could immediately verify any new intelligence they picked up. Call me crazy, but interrupting a detainee repeatedly, 24/7, to ask a question sounds like a great way–even better than the Frequent Flier program used at Gitmo–to sleep deprive someone under the guise of doing something else. Since Shahzad eventually plead guilty (remember that Pakistan basically detained his family members, perhaps including his wife and kids, while he was being questioned), the judge never really challenged whether his confession was coerced.

So we only have to look at the one prior case where such a delay was used to understand what kind of abuse can be done during the time before a detainee gets a lawyer.

So perhaps I am justified to be horrified by the parallel structure used in this memo and that used in John Yoo’s notoriously problematic Bybee Memo.

The White Paper and the Classified Opinion

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

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

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

General Contents

Goldsmith’s memo is organized this way:

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

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

I. Executive Order 12333

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

III. Completely redacted criterion*

IV. Completely redacted criterion*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Producing Scary Memos to Justify Domestic Surveillance

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

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

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

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

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

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

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

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

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

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

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

What follows is largely a wildarsed guess.

The Half-Redacted Timing of the Post-Hospital Changes

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

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

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

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

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

The March 19 Modification Limits Content Collection to Terrorist Conversations

On page 16, Goldsmith writes,

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

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

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

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

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

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

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

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

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

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

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

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

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

The April or May Change(s)

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

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

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

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

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

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

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

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

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

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