Prosecutors Could Not Have Gotten the Type of Metadata People are Most Worried About With Subpoenas to Apple

Here is a short guide to the complex issue of what kinds of communications-related metadata that prosecutors could have seized from Apple with grand jury subpoenas, including about Schiff, Swalwell and McGahn: /1

These are some types of metadata that can be subpoenaed: when one used apps like Facetime & iMessage, & one’s IP addresses & hardware identifiers like SIM and IMEI #s during those sessions (+ account info like name, address, credit card, & other phone # or email handles). /2

But here is a key type of metadata prosecutors could *not* have obtained with a subpoena to Apple: logs of one’s communications on Facetime or iMessage that would systematically reveal whom one had been confidentially speaking to. /3

That's bc to seize “to/from/when”-style info re electronic coms – like email headers or logs of Facetime calls & iMessage texts – prosecutors need a 2703d court order, not a subpoena. (The DOJ fight for NYT & CNN email data that led to gag orders involved such "d orders.") /4

The law in this area is messy and inconsistent, and to get traditional phone call logs, prosecutors *can* use a mere subpoena. That’s apparently how DOJ got NYT/CNN/WP reporters’ calling logs. But Apple isn’t the sort of company that compiles that category of records. /5

Did prosecutors send a similar subpoena to phone companies, which could have given them call logs of officials like Schiff, Swalwell and McGahn? We don’t know: Apple is more transparent than other companies in notifying customers about data seizures (when it is not gagged). /end

Originally tweeted by Charlie Savage (@charlie_savage) on June 15, 2021.

New Leak by Daniel Ellsberg: the Risk of Nuclear War over Taiwan

Fifty years ago next month, the NYT began publishing the Pentagon Papers, a seminal moment in the history of the Vietnam War and in leaks of Top Secret information. Its source, Daniel Ellsberg, has made another unauthorized disclosure. /1

Risk of Nuclear War Over Taiwan in 1958 Said to Be Greater Than Publicly Known
The famed source of the Pentagon Papers, Daniel Ellsberg, has made another unauthorized disclosure — and wants to be prosecuted for it.

Ellsberg also copied a large amount of material about planning for nuclear war, intending to release it later. Most was instead lost. But he kept a Top Secret study of the 1958 Taiwan Strait crisis, when the US almost went to war with China./2

The study – written for RAND Corp. by Morton Halperin – was later partly declassified. But the government whited out dozens of pages about internal deliberations and planning for a potential first-use nuclear strike on mainland China. /3

It had been known in broad strokes that the Pentagon thought about using atomic weapons in 1958 before the crisis ebbed because Communist forces backed off. But we didn't have details showing how eager and serious the push was. /4

Officials pushed for a first-use strike because it doubted that Taiwan and its "Offshore Islands" could be successfully defended using conventional weapons alone. Today, those same concerns are flaring anew./5

Ellsberg believes the Pentagon today must be drawing up contingency plans for what happens if a war breaks out of Taiwan and the US is losing using conventional arms. He says the public should be part of a debate over whether a first-use nuclear strike would be on the table./6

Ellsbert, now 90, also has a parallel but very different motivation: he wants the Biden Justice Department to prosecute him under the Espionage Act for the unauthorized disclosure he is openly confessing./7

When the Nixon Justice Dept charged him under that law for leaking the Pentagon Papers, its use in a leak case was novel. (The case was thrown out for unrelated reasons.) Under the Bush-Obama-Trump Justice Dept, it has become routine. But most cases plead out, averting appeals./8

Ellsberg said he would not strike such a plea deal, and would handle his defense to tee up for the Supreme Court to confront whether it violates the First Amendment to use that WW I-era law to criminalize unauthorized disclosures of government secrets in the public interest./end

Originally tweeted by Charlie Savage (@charlie_savage) on May 22, 2021.

Two book review essays

After neglecting this website for awhile, a recent technical mishap required me to pay attention to it again to fix it (with help once again from my friend John Musser of Digerati Designs). That’s a good opportunity to take note of two book-review essays I wrote as a freelancer for publications other than The New York Times.

Last month, The New Republic published my piece pegged to two books about intelligence-style work outside of government. One is We Are Bellingcat: Global Crime, Online Sleuths, and the Bold Future of News by Eliot Higgins. The other is Spooked: The Trump Dossier, Black Cube, and the Rise of Private Spies by Barry Meier. TNR headlined this piece “The Rise of Private Spies: What happens when online investigators and detectives-for-hire take on intelligence work?

In October, The Nation published my piece pegged to Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act by Nicholson Baker, a book about his failed quest to used FOIA to prove his suspicion that the United States has been covering up some battlefield use of biological weapons in the Korean War. It was headlined “The Blacked-Out Line: Nicholson Baker in the labyrinths of American secrecy.”

Glenn Greenwald’s Dishonest Conspiracy Theory on the CIA’s Russian Bounty Assessment

In service of his schtick, @ggreenwald is again putting forward a series of bad-faith misrepresentations re the CIA Russian bounty assessment and the NYT reporting on it. I’m going to dissect various ways he is demonstrably gaslighting, after which I’ll ignore him. /1

At a hearing last year, various lawmakers brought up the recently disclosed bounty issue while also expressing skepticism about Trump’s plan withdraw 4100 of 8600 troops in Afghanistan. Glenn concocted a theory the bounty story was a conspiracy to keep the war going. /2

At the onset, there’s a big conceptual problem he’s never engaged with: The assessment was a reason to be angry at Russia, but it was also a reason to be *less* suspicious of Taliban leaders: some recent attacks were perhaps astroturfed and not their doing. /3

The big threat to hopes for ending the war was not lawmakers’ skepticism of an abrupt halving of troop levels, but the risk of disrupting the Doha peace talks with Taliban leaders. If a big attack happened, the US could not jump to the conclusion that the Taliban were to blame./4

But besides ignoring that glaring logical gap, let’s look at signs of deliberate obfuscation. For ex, this sentence creates the impression the CIA “cooked up” its “tale” in close proximity to its disclosure, which would support his narrative. It was actually then 5 months old. /5

Glenn’s narrative also needs the CIA to have leaked this, scheming to manipulate public opinion again! So he fosters an impression the agency was our source (“this conveniently leaked CIA story,” “CIA propaganda”) & sometimes outright calls it “the CIA leak.” /6

He’s even absurdly invented out of thin air a claim that the NYT somehow “admitted” the leak came from the CIA. He actually has no idea from where we managed to piece it all together. Multiple parts of the executive branch knew about it and it had been shared with allies./7

Relatedly, his claim of a timing link to Trump’s troop reduction plans turns on the premise that our reporting was brief and minimal, like Snowden handing him docs to summarize. He has no idea when we first heard about the assessment and how long we worked to figure it all out./8

Glenn’s narrative needs the CIA’s judgment to be a hoax like Trump said, so he keeps saying there was never any evidence presented for it. In the real world, we rapidly dragged out an unusual amount of detail about the underlying evidence’s scope & limits last year. /9

Putting aside the info the Biden admin recently declassified, we wrote a lot last year about evidence like statements by detained members of a criminal network in contact with Unit 29155, the dovetailing travel data and $ transfers – and the lack of surveillance intercept./10

Glenn keeps saying the “story” has been discredited, using fast-and-loose language that blurs the distinction between the CIA assessment itself & the NYT’s reporting on it. In reality, everything we reported about its existence & the Trump admin’s handling of it was accurate. /11

The assessment itself is like most intel analysis seeking to make sense of what an adversary may trying to hide. The rival confidence levels the WH cited were known in 2020, not a new and thus discrediting event. All the analysts agree the assessment is the best explanation./end

P.S. Predictably, Glenn has responded to this thread not by rebutting it, but with cynical insults and false insinuations. I have known him since his earnest “How Would a Patriot Act?” days during the Bush years. He is not the same person he used to be.

Originally tweeted by Charlie Savage (@charlie_savage) on May 14, 2021.

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.

Congress is Litigating at a Historically Unprecedented Rate, as the Aberrational Trump Era Accelerates a Polarization-Driven Trend

It was once rare for Congress to go to court. But the number of cases House Democrats are now litigating is historically unprecedented — a Trump-era aberration that is accelerating a larger shift in governance whose seeds predate Trump. w/ @npfandos

The House v. Trump: Stymied Lawmakers Increasingly Battle in the Courts

It’s routine, of course, for the executive branch, via the Justice Department, to make arguments to the judicial branch. But it was once all but unheard of for the legislative branch. Congress had to pass a special law for a Senate committee to seek the Watergate tapes, for ex.

Then, in 2008, Congress broke new ground w/ a lawsuit to enforce subpoena re US attorney firings. It filed another in 2012, re Fast and Furious. Now, a deluge: 5 cases already (Mazars, Deutschebank, Mueller report, Trump taxes, McGahn) & more coming. (Twist: Trump filed 1st 2.)

Similarly, it was once weird for Congress to go into court to defend a law that DOJ abandoned. It happened in the 70s w/ legislative vetos, but that was a special topic: presidents saw them as unconstitutional intrusions on exec power (SCt agreed in 1983). This is changing too.

In 2011, the Obama administration abandoned the Defense of Marriage Act, not a separation-of-powers law but a matter of general governance. The House stepped in to defend it against constitutional challenges, until the SCt struck it down in 2013.

This year, that has happened twice already: the DOJ has abandoned the Affordable Care Act and a law against female genital mutilation, and the House has sought to intervene and provide lawyers to go to court to keep defending both laws against challenges.

Another category: the legitimacy of executive branch spending decisions. In 2014, the House GOP filed a lawsuit challenging Obamacare subsidies to insurers. This year, the House filed another, challenging Trump’s invocation of emergency powers to spend DOD money on a border wall.

The House is also increasingly filing amicus (friend of the court) briefs, and sometimes making arguments, in other cases to which it is not a party. 4 this year so far: the Census case, other border wall and ACA cases, & a lawsuit seeking voting rights for District of Columbia.

And of course Trump sued the House Ways and Means Committee to prevent it from asking the state of New York to provide his state tax returns. That’s another example where part of the spike in the numbers are is driven by the present abnormal moment.

But the surge in numbers is making clearer in hindsight that things were already starting to change in recent years before Trump, kind of like how Bush's unprecedented signing statement #s, and Obama's unprecedented leak case #s, had seeds in the actions of predecessors.

This deeper trend is likely a symptom of partisan polarization. As political negotiation and compromise becomes harder, litigation replaces it. Thus even if the #s drop some under Trump’s successor, it seems likely that this new practice will continue as part of our governance.

One thing that will be interesting to watch is how trans-branch partisan teams fuel it. In 2011, when House GOP decided to intervene and defend DOMA, it paid a couple million dollars to Paul Clement, a former Bush administration solicitor general, and his firm for the legal work.

Obama legal team veterans are similarly helping House Dems this year — but they & their firms/NGO are working for free. They include 2 former SGs, Don Verrilli & Neal Katyal, a former OLC head, Virginia Seitz, & two former senior nat-sec lawyers, Mary McCord & Josh Geltzer.

Originally tweeted by Charlie Savage (@charlie_savage) on August 13, 2019.

The Gotcha Takes on Barr’s Census Question Comments Are Off, But Something Else Is Dubious

I think some gotcha takes are missing the mark re Barr’s comments about the “hysterical” media insinuating that the Trump admin was thinking about adding the citizenship question to the Census by executive fiat. There is something here worth scrutinizing, but it’s different. /1

People are citing Barr saying Monday, after being asked about an executive order, that “it does provide a pathway for getting the question on the Census” — but then saying Thursday that there was no truth to reports that the admin was weighing adding the q by executive fiat. /2

The 1st problem with this is that on Monday, his fuller quote shows that the antecedent to “it” was a soon-to-be-revealed “approach we’re taking,” which is vague and doesn’t necessarily mean an executive order. /3

The 2nd problem is that on Thursday, his fuller quote shows that Barr's point was that the admin was never thinking about putting the question on the Census *without going through judicial review,* i.e. just defying the injunction. He wasn't saying no exec action, period. /4

So the take that these 2 statements amount to Barr saying they were thinking about using an executive action and then brazenly criticizing the media for saying they might use an executive action, is doubly off. But there is something else questionable here. /5

Barr explained on Thursday that there is simply not enough time left to litigate a new rationale for putting the question on the Census. But that was just as true back on Monday when he nevertheless claimed there was a pathway for doing that. /6

Therefore, if what Barr said on Thursday is true, what he said on Monday was false at the time he said it: there was never a pathway. One potential explanation is on Monday, he was saying what Trump wanted to hear and what was politically expedient–not being an honest broker. /7

Originally tweeted by Charlie Savage (@charlie_savage) on July 12, 2019.

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: