Antonin Scalia’s 2007 remarks about national-security issues in the Ford administration

In my 2007 book, “Takeover,” I included a quote from a speech by Justice Antonin Scalia about his time as a senior Justice Department official in the Ford administration and during the Church Committee investigation. (Scalia was then the assistant attorney general for the Office of Legal Counsel.) I recently had a chance to listen to a recording of that speech and realized that my younger self slightly mis-transcribed it. This did not change the meaning, fortunately, but I want to take note of the error. In addition, because people on several occasions over the years have asked me for a copy of the whole speech, it seems worth taking this opportunity to make it generally available in case it can be useful to other scholars. So I’ve uploaded an MP3 to Google Drive and am linking to it at the bottom of this post.

Preliminary contextual notes:

First, Scalia made these remarks on June 12, 2007, as a keynote address for a national-security legal conference in Ottawa, Canada, called the “International Conference on the Administration of Justice and National Security in Democracies.” I also attended this conference as a panelist speaker and have a recording of his speech.

His appearance got some media attention because in a separate Q&A session, he was asked about the possibility of prosecuting officials who tortured terrorism suspects, and responded by saying that no one would prosecute Jack Bauer of the TV show “24” for torturing a bad guy to save Los Angeles.  But it appears in my book that I was the only one to take note of anything from his main remarks, and this recording appears to be the only available record of them.  In addition to his memory of having had to review covert actions during the Church Committee, Scalia also talked about something regarding the FISA court (a reform that grew out of the Church investigation) I did not know, and am not sure if had been previously disclosed (it certainly wasn’t widely known if so even among nat-sec legal types, based on my conversations): although on its face the warrant requirement for national security investigations created by the original Foreign Intelligence Surveillance Act of 1978 applied only to (certain) wiretapping, the Carter administration sought and obtained FISA warrants for physical searches (black-bag job break-ins) in counterintelligence and counterterrorism investigations on domestic soil. The Reagan administration quashed that by applying for such a warrant but also arguing that the FISA Court had no jurisdiction to issue one, and getting a judge on the court to agree, after which the executive brach resumed doing warrantless searches in such cases until the Clinton era, when Congress expanded FISA to cover black-bag break-ins. See “Takeover” pp 30 and 48-49. 

Second, “Takeover” was published in September 2007, so the manuscript would have been complete and edited by that June and its index was also probably already done, making it hard to make changes. Straining, I can conjure up a vague memory of shoving these new tidbits into it; that haste probably explains but does not excuse the imprecision. In “Takeover” the excerpt about covert action approvals during the Church Committee appears like this, with the now-suspect bits in bold:

Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus [*] to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.

Listening again to the recording, I now think Scalia’s actual words were:

During part of this period I attended a daily morning meeting in the Situation Room of the White House at which Bill Colby, the Director of Central Intelligence, Jack Marsh, Secretary of the Army,  Mitchell Rogovin, a special counsel, uh, outside counsel, hired by the CIA, and a number of other high level officials decided which of the nation’s most highly guarded secrets would be turned over that day to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning.  One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department.  So, believe it or not, for a brief period of time, all covert actions had to be approved by me.  Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise.  Nor did I feel that the Department of Justice had a security apparatus adequate to protect against penetration by foreign operatives.  We had enough security procedures to frustrate la Cosa Nostra but not the — not the KGB.

So I erroneously placed the opening quotation mark before the word “we,” but “we” was a paraphrase so the quotation mark should have come after it. I also slightly misplaced the phrase “that day” and missed the word “adequate.”

Note that Scalia misidentified Jack Marsh’s role; Marsh was actually a counselor to Ford in the White House and didn’t become secretary of the army until the Reagan administration. (Marsh, who died in 2019, was kind enough to give me an interview when I was researching the book in 2006.) The audio quality is a little muddy in spots, so others may have a slightly different interpretation.

I am indebted to Bruce Murphy of Lafayette College for restoring to me a copy of this audio recording. He had asked me for it some years ago when he was working on what became his 2014 book Scalia: A Court of One and I sent it to him, but when I recently went looking for my recording again I was unable to locate it – that was several computers and email accounts ago. He still was able to find a copy of what I had sent him and emailed it back, saving it from oblivion.

Here are links to the MP3 files:

Scalia’s keynote speech. (Unfortunately, it’s missing the very opening.)

Partial recording of the Q&A session. (Unfortunately, if memory serves, my recorder ran out of room and cut off before the famous Jack Bauer bit.)

The Buried History of Fort Wayne and Culture War

Over the course of about 15 months in 2019-20, I developed a special side project: a deep look at a political and culture-war fight that broke out in my hometown of Fort Wayne, Indiana, last year, over creating a new honor for the town’s namesake, who conquered the Native American tribes in the Midwest and opened it up for white settlement. Digging into this would take me to Oklahoma to visit the tribal nation that once lived where Fort Wayne now stands, and lead me to excavate some important but not always pretty truths about the area’s history that we were never taught in school growing up. The complexities and perspectives raised by this fight in many ways anticipated the broader national moment touched off by the police killing of George Floyd in Minneapolis. The project was published by POLITICO Magazine as “When The Culture Wars Hit Fort Wayne.”

In the course of researching the history of the region, I also learned that there is a major Native American burial ground under the city’s Spy Run area, just north of downtown. It was casually desecrated when the area was developed as a residential neighborhood in the late 19th and early 20th centuries. And other than a fragment of open space that was restored 60 years ago and misleadingly named the Little Turtle Memorial, it has since been forgotten — almost literally covered up. I had room for only a few sentences about it in the main POLITICO Magazine article, but used that research to write a stand-alone piece about the cemetery for The Fort Wayne Journal Gazette, which published it as “Buried Concerns.”

Read the 1986 Justice Department Report for Ed Meese “Separation of Powers: Legislative-Executive Relations”

A few days ago, I wrote a piece analyzing Attorney General Bill Barr’s Federalist Society speech on his maximalist view of executive power, which I, argued, had more to do with Ronald Reagan’s 1980s than George Washington’s 1780s. I included a cautionary quotation from an internal 1986 Justice Department manifesto on separation of powers issues commissioned by Barr’s predecessor, Ed Meese, which I had unearthed in the National Archives when I was a Boston Globe reporter and doing research for my first book, Takeover.

Several people asked me if I could share that report. I told them that while it’s possible I have a photocopy buried somewhere, I wasn’t sure how to easily put my hands on it. But in a coincidence, I needed to go up to the National Archives in College Park Wednesday to pickup some documents I had FOIA’d out on an unrelated matter. So while I was up there, I also took the time to ask the archivists to pull that box out of Meese’s files for me again, and I scanned the report. I am posting it here (and adding it to the short list of rare primary documents from Takeover or my other book, Power Wars) in case it may be of interest or use to specialists.

In cracking open the box — from Meese’s correspondence files with his Office of Legal Policy — I noted a marking saying that it had been reviewed and opened for public viewing in November 2006. I.e., I had been the first person to request access to that box. I wondered if anyone else had touched those pages in the intervening 13 years.

Upon re-reading the report, I also decided that when my younger self discussed it in Takeover, I had been imprecise in two respects:

  1. LENGTH: My book calls it an eighty page memo. The main report and first two appendices, which contain original material with analytical value (e.g., a detailed summary of separation-of-powers fights during the Reagan years), comprise 81 pages. But there were additional appendices of diminishing interest (e.g., photocopies of several Federalist Papers). The PDF I scanned and posted (click here for downloadable version on DocumentCloud) is the whole thing.
  2. SCOPE OF ITS DISCUSSION OF THE UNITARY EXECUTIVE THEORY: By using this memo as a narrative jumping off point to explicate the Reaganites’ executive power theories, my book may create the impression that this particular report lays out a detailed defense of one of them, the Unitary Executive. While the report dove deep into their related theory of how the Framers wanted the separation of powers to work, its engagement with Unitary Executive issues is briefer because, it says, the status of independent agencies was “already under thorough consideration” elsewhere within the department.
Meese-Separation-of-Powers-Report

A Victory Against Secret Law: Appeals Court De-Censors Its Ruling in Doe v. Mattis (the U.S. citizen enemy combatant case)

Today, in a victory against secret law, the Court of Appeals for the District of Columbia has unsealed and re-issued a significant ruling it issued in May 2018 in the case of Doe v. Mattis, regarding an American citizen who was held without trial in American military custody for over a year as a suspected Islamic State member. This result is due to the vision and hard work of the Media Freedom and Information Access Clinic at Yale Law School, which had the idea and asked me to be the plaintiff. Congratulations to the clinic’s David Schulz, Charles Crain, Paulina Perlin, and Sarah Lamsifer.

The ruling in question was that the U.S. government could not forcibly transfer an American to another country over his objections without first proving that he was indeed an enemy combatant being legitimately detained under the laws of war, which he contested. The government considered it a secret which countries it was negotiating with to take the man, and so portions of the ruling that discussed those countries and legal issues raised by them were blacked out on pages 36, 37, and 44 in the majority opinion by Judge Sri Srinivasen, and pages 1, 4, 5, 8, 17-19, and 31-33 in the dissenting opinion by Judge Karen LeCraft Henderson, making them difficult to parse.

In fact those countries were Iraq, where he was being held at an American base, and Saudi Arabia, where he was a dual citizen despite having been born in the United States. The New York Times had already reported those facts — and eventually other ones that still remain officially secret, like that his real name is Abdulrahman Ahmad Alsheikh and that he was ultimately freed in Bahrain — based on sources. But making these passages in the ruling visible is an important accomplishment for making this legal precedent understandable, both for scholars to study and for potential litigants if a similar dispute arises again in the future.

“I think the most important takeaway is that the public now knows that the government was arguing that dual citizens possessed lesser Fifth Amendment rights against transfer than sole-U.S. citizens,” said Brett Max Kaufman, a lawyer for the American Civil Liberties Union, which represented Doe/Alsheikh. “That may have been implied by what was public before, but now those arguments are out in the open (and the specific holding can be relied upon in future cases).”

Kaufman added that while the identity of Saudi was something of an open secret, there was real value in official confirmation, as the complaint “compellingly argued” and as is evidenced by the revelation of the government’s specific legal theory.

I would also like to applaud the Justice Department for not trying to fight the unsealing, other than by making a small request that we did not object to: keeping the name of a State Department official who filed an affidavit blacked out.

Here is the order and unredacted ruling:

[documentcloud url=”http://www.documentcloud.org/documents/6175148-Doe-v-Mattis-Unsealing-Order-DC-Circuit.html” responsive=true]

The NYT Is Surveying 2020 Presidential Primary Candidates About Their Views on Executive Power

On Friday, I emailed numerous presidential primary campaigns an invitation to participate in a New York Times survey project on executive power. Our intent is to publish the full answers of each participating candidate, alongside notations indicating which others were unwilling or unable to answer the questions. We gave the campaigns a one-month deadline of July 19. You can read the questionnaire below.

The idea is to ask would-be presidents to talk about their understanding of the scope and limits of the powers they would wield if elected – before voters decide whom to entrust with the presidency. One section also asks the candidates to reflect on how they would handle issues raised by what may turn out to be a reform era, in which Congress may pass bills seeking to curb executive power in response to Donald Trump’s serial violations of previous norms of presidential self-restraint, and the next president will have to decide whether to sign them into law even though that would mean constraining his or her own authority.

This is the fourth iteration of this project. It traces back to late 2007, when I was a Boston Globe reporter and had just written my first book, Takeover, about the Bush-Cheney administration’s efforts to expand executive power. Some of the most important controversies of that period had made clear that in the post-9/11 era, the constitutional views of a president and his or her legal team can be crucial – and yet nobody was asking the candidates about them in televised debates. After listening to me complain about that one too many times, my wife Luiza suggested I ask such questions myself, so I did so, leveraging the Globe’s window of outsized influence ahead of the New Hampshire primary. After moving to The New York Times, I repeated the project in late 2011 and in early 2016, each time updating the survey to cull some questions and add others addressing more recent disputes.

We got responses from nearly all the significant 2008 and 2012 primary candidates, including each of the eventual party nominees — then-Senators Barack Obama and John McCain (as well as then-Senators Joe Biden and Hillary Clinton), and then-Governor Mitt Romney and most of his 2012 GOP rivals. Four years ago, the results revealed a rare commonality between the two nominees, Hillary Clinton and Donald Trump: neither wanted to talk about what limits on their powers they would respect if elected. My hope is that the dynamics of the 2020 cycle will mean that serious primary candidates will see engaging with these types of questions as valuable and important to American democracy — and that voters will judge them accordingly.

[documentcloud url=”http://www.documentcloud.org/documents/6165485-2020-NYT-Executive-Power-Survey-of-Presidential.html” responsive=true]

Privacy and Civil Liberties Oversight Board releases PPD-28 surveillance report in response to my FOIA

In response to a Freedom of Information Act request I submitted in the spring of 2017, the Privacy and Civil Liberties Oversight Board (PCLOB) has declassified and made public a partly redacted version of its December 2016 (ish) Top Secret report on the implementation of President Obama’s PPD-28, the presidential policy directive he issued in January 2014 to impose various surveillance reforms in response to the Snowden disclosures.

I reported on the insider history and substantive content of this directive in Power Wars’ Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 12 (Obama Under Pressure – Freedom Act II). Among other things, I parsed how many of the reforms, especially viz limits on handling foreigners’ data, codified existing practices.

The PCLOB report confirms that assessment. It is riddled with sentences about how the NSA, FBI, and CIA were largely already doing what Obama instructed them to do in such respects. One exception is that the CIA apparently applied its limits (like a requirement to delete raw data after five years) to mixed-source collections — those that contained information gathered both through electronic surveillance and human-source intelligence — even though the directive on its face applied only to signals intelligence, not humint. The two Republican PCLOB board members at the time, Rachel Brand and Elisebeth Collins, didn’t like that.

Here is the report:

[documentcloud url=”http://www.documentcloud.org/documents/5003461-Savage-NYT-FOIA-PCLOB-PPD28.html” responsive=true]

“Vice” – A Cheney Biopic [updated 4/7/19]

Check out Christian Bale as Dick Cheney in this trailer for “Vice” that dropped today. This movie looks fantastic.

Chapters two and three of my first book, Takeover, were essentially an intellectual history of Cheney – why he had the views on executive power that he did, based on his previous life experiences – leading up to his ascent to power as the most influential vice president ever in Bush’s first term. You can read chapter two for free on this website, which gets you to the end of the Ford administration, when he was the youngest White House chief of staff in American history during the fallout from the Vietnam War, Watergate, and the Church Committee investigation.

 

UPDATE APRIL 7, 2019: I finally got around to watching this movie last night and had a mixed reaction. It was well acted and stylistically excellent in that Adam McKay way, but various inaccuracies bothered me.

It was probably inevitable that any movie would get the Unitary Executive Theory wrong (it used that phrase as a synecdoche for Bush-Cheney executive- power legal theories). But there were also omissions and distortions — particularly about Cheney’s intellectual history and beliefs (it portrays him as having none) — that I thought were unjustified by the sacrifices necessary to dramatize/simplify real-life events into a two-hour movie: they just made Cheney’s story less interesting than the reality had been, without any such silver-lining virtues.

(A friend had warned me I would have that reaction, which is why I didn’t rush to see it in the theater but waited for it to be available by streaming.)

After watching the movie, I was reading this article in Esquire,  “Vice Tries to Examine Dick Cheney’s Heart, but Conveniently Overlooks His Brain,” by Zeeshan Aleem, and thinking to myself yeah exactly, and then clicked on a link the writer was citing to make one such point, to discover …yep, I guess I would think that, wouldn’t I.