“The Imperial Presidency?” ACS Panel Discussion on Executive Power

C-Span has now made available the video of last weekend’s panel discussion on executive power at the American Constitutional Society for Law and Policy annual convention, which I moderated. The all-star panel included Walter Dellinger, Marty Lederman, Sai Prakash, Neomi Rao, and Hina Shamsi.

Here is the description from ACS:

The Imperial Presidency?

President George W. Bush and President Barack Obama entered office with radically different conceptions of executive power, particularly with regard to war powers and national security, and the coming year will see the election of a new president. The Bush Administration claimed sweeping unilateral executive power to act contrary to federal laws that regulated surveillance and banned torture, and issued hundreds of signing statements asserting the right to disregard statutory requirements. President Obama entered office rejecting this overreaching and pledging to restore the rule of law. But in the face of congressional obstruction, President Obama also has been accused of abusing presidential power in the contexts of immigration, health care, climate change, and recess appointments. When the next president takes office in January 2017, what view of executive power will and should prevail, and what is at stake for the nation?

 

Senate Intelligence Committee Wants to Give DNI Veto Power Over Gitmo Transfers

The text of the Senate Intelligence Committee’s version of the 2017 intelligence authorization bill has finally been made public. The panel is chaired by Senator Richard Burr, Republican of North Carolina.

The bill has been getting some attention because, as first reported by Jenna McLaughlin of The Intercept, it has a provision that would expand (or, depending on your point of view, restore) the scope of Internet metadata records that the FBI can get via a national security letter to include “electronic communications transactional records.” This reprises a similar push the FBI made in 2010, which failed. That’s Section 803.

But there’s another national security legal policy tweak in it related to Guantanamo that hasn’t been scrutinized. It would create an additional bureaucratic hurdle to transferring Gitmo detainees by requiring the Director of National Intelligence to certify to Congress that a monitoring system is in place sufficient to mitigate any risk of recidivism. That’s Section 702.

Under the current statutory transfer restrictions, the Secretary of Defense must already certify to Congress that the risk of recidivism has been sufficiently mitigated, 30 days before any transfer. That procedure has significantly slowed transfers that had cleared the interagency review process but languished on the desk of Chuck Hagel and, to a lesser extent, Ash Carter. So effectively this would create a second chokepoint, giving the head of the intelligence community a veto or pocket veto, too.

702. LIMITATION ON TRANSFER OF DETAINEES TO FOREIGN COUNTRIES.

(a) COMPLIANCE REQUIRED —

(1) IN GENERAL,– An individual detained at Guantanamo may not he transferred or released to a foreign country until after the date that the Director of National Intelligence certifies that an intelligence driven threat monitoring system has been established and is sufficient to mitigate the risk of such individuals reengaging in terrorist activity or posing a threat to United States persons or national security, and that the intelligence community has the capability to monitor all such individuals by appropriate means to provide assessments on the activity of such individuals, as required.

(2) CONSTRUCTION.–Requirement in paragraph (1) in connection with the transfer or release of an individual detained at Guantanamo is in addition to any other requirement applicable to the transfer or release of the individual in law.

Mitt Romney may be #nevertrump, but “Romney for President Inc.” wishes Donald Trump a happy birthday

This doesn’t have anything directly to do with national security (or does it?), but this is such a marker of the incoherence of the 2016 presidential race that I can’t resist sharing it. A friend just passed on the below e-mail, which the National Republican Senatorial Committee sent out today to the mailing list of “Romney for President, Inc.” Last I checked, Romney the former presidential candidate was still firmly #nevertrump. If “corporations are people, my friend,” this one seems to be turning on its parent.

(I made the email into an image file, but if you clicked on the original, it took you to a place to “sign the card” which probably meant reupping your email address for NRSC fundraising spam. Trump’s birthday is June 14.)

TrumpBirthday

Seven Ways Donald Verrilli Shaped Obama-era National Security Legal Policy

Don Verrilli is stepping down after five years as the Solicitor General. News accounts of his departure, like this one by my colleague Eric Lichtblau, are understandably focusing on the big domestic law cases he argued before the Supreme Court – particularly the ones on Obamacare and same-sex marriage rights. But Verrilli’s impact on governance went far beyond those issues and into the realm of national security legal policy, as readers of Power Wars know. Here are seven important contributions:

1. State Secrets Privilege

Verrilli joined the Obama administration in 2009 as the top associate in the Office of the Deputy Attorney General (ODAG) dealing with national security issues. In that role, his first task was to lead the new administration’s review of state secrets policy. He oversaw a review of all the pending court cases in which the Bush administration had asserted state secrets and, counter to the expectations of the new administration that they had been abused to cover up wrongdoing, recommended to Attorney General Eric Holder that the Obama administration should keep all of them as justified. He also wrote a new policy for future invocations of the privilege, which echoed the process for when prosecutors seek the death penalty – including requiring written sign-off by the attorney general. (420-424)

2. Bush-era Torture Memos 

That spring, Verrilli was also a key player in a push by new political appointees at the Justice Department to release Bush administration-era torture memos in response to an ACLU Freedom of Information Act lawsuit, rather than fighting the case. He wrote a memo that went to the White House arguing for why the memos should be made public. (426-430)

3. Miranda Warnings and Presentment Hearings for Terrorism Suspects

In 2010, Verrilli went to the White House under the new White House Counsel, Bob Bauer, initially as an associate dealing with national security issues. In that role, Bauer tasked him with leading the process, after the attempted bombing of a Detroit-bound airliner on Christmas 2009 made the FBI’s reading of Miranda rights to terrorism suspects controversial, of developing a proposal to delay reading Miranda warnings and giving presentment hearings to such suspects. The Obama administration eventually abandoned that proposal and a lot of its members felt ashamed that they had flirted with it. (305-308)

4. War Crimes and Military Commissions

In late 2012 a federal appeals court ruled that two major crimes being prosecuted in Guantanamo military commissions, providing material support for terrorism and conspiracy, were not international “war crimes” and so could not be brought in a tribunal – only a civilian court. The chief prosecutor in the tribunals system, General Mark Martins, and Harold Koh, the top State Department lawyer, wanted to accept that ruling and downsize the tribunals system, but others wanted to appeal. Under normal circumstances, it is up to the solicitor general to decide what appeals to file. Verrilli, now the solicitor general, sided with Martins and Koh, but took the issue to Holder, who overruled them. (495-501)

5. Warrantless Surveillance and Evidence Derived From It

Back in 2012, Verrilli had argued before the Supreme Court against the ACLU in a case challenging the constitutionality of the FISA Amendments Act, which legalized the Bush administration’s warrantless surveillance program. He told the court that the ACLU’s clients did not have standing to sue because they could not prove they had been wiretapped under that program, but assured the justices that this did not mean the statute would never be reviewed because the Justice Department had an obligation to tell criminal defendants if they faced evidence derived from such surveillance, and such defendants would have standing to challenge it. He won that case 5-4. But in June 2013, after the leaks by Edward Snowden cast a spotlight on surveillance matters, it became clear that the national security prosecutors did not think they had a duty to tell defendants when they faced evidence derived from such surveillance. Verrilli, initially confused as to why the National Security Division had permitted him (in vetting his brief and mooting his arguments) to say otherwise to the Supreme Court, eventually became convinced that the Justice Department policy was illegal. In July 2013, he pushed through a policy change over the objections of the National Security Division and the future attorney general Loretta Lynch, and the department for the first time began making some such notifications, setting up opportunities for judicial review of the statute. (555, 558-560, 586-593)

6. Office of Legal Counsel Memos on Killing Anwar al-Awlaki

In 2014, after a federal appeals court ruled that the Obama administration had to make public its secret legal memos about the targeted killing of Anwar al-Awlaki, an American citizen, in response to FOIA cases brought by the New York Times and by the ACLU, the CIA wanted to appeal to the Supreme Court. As solicitor general, it was up to Verrilli to make that call – and he decided not to appeal but instead to comply with the ruling and put the memos out. (465-467)

7. Judicial Review of Conditions of Confinement at Guantanamo

Also in 2014, a federal appeals court ruled that judges had jurisdiction to oversee conditions of confinement – like the practice of force-feeding hunger-striking detainees – at Guantanamo. The top Pentagon lawyer wanted to appeal that ruling, but Verrilli let it stand. (515-516) However, Verrilli later did decide to appeal a ruling that videotapes of forcefeeding be made public (748 n 79).

 

 

General Hayden’s World

Several months ago, as The New York Review of Books was preparing to publish its review of Power Wars, I received a letter from its editor, Robert Silvers, asking whether I would like to write a review essay about Playing to the Edge by Michael Hayden, the former head of the NSA and the CIA. I accepted the assignment. The essay I wrote weighs Hayden’s book and his broader contribution to the public debate over post-9/11 issues like warrantless surveillance, torture, and targeted killings against the standard he sets for the role an intelligence officer should play in a modern democracy. The paywall link is down and it may be read for free here.

NY Review of Books cover

Carter and Dunford grovel a bit re female guards at Gitmo and military commissions independence

Here’s a 4 p.m. before Memorial Day Weekend news dump item. The background is here. (Don’t hold your breath waiting for any similar from Senator Ayotte though!)

Statement by Secretary of Defense Ash Carter and Chairman of the Joint Chiefs of Staff General Joseph F. Dunford Jr. on Gender-Neutral Staffing of Guard Forces at JTF-GTMO

Military commissions are part of our system of military justice.  The Department of Defense, and we personally, are committed to fairness and transparency in military commission proceedings, and to the independence of the judges who oversee them.

Our comments and those made by other senior officials regarding gender-neutral staffing of guard forces at JTF-GTMO have given rise to a concern that the comments may have appeared to be intended to influence the proceedings.  We continue to believe that our military has legitimate and strong interests in gender-neutral staffing, integration of women into all positions, and the prevention of gender discrimination.   We also believe that protection of the freedom of religion, and the access to representation, are fundamental to who we are.  To be clear, we had no intention to influence the military judges presiding over the military commissions.  Along with other senior officials in the Department, we respect the role of military judges in evaluating these issues as they might affect an individual case and we fully expect them to make their independent determinations on these and other matters.

Ted Cruz and Senate GOP want to expand the Gitmo transfer ban — including to Afghanistan and Israel, but exempting Saudi Arabia

The newly unveiled Senate Armed Services Committee version of the National Defense Authorization Act has a provision that would wildly expand the number of countries to which the U.S. government may not transfer low-level Guantanamo detainees. Specifically, it would ban transfers to any nation for which the State Department has issued a travel warning. Senator Ted Cruz, Republican of Texas, has taken credit for adding it to the bill during the committee’s closed-door markup last week. This provision is not in the House version of the NDAA, so it has the feeling of something that will likely get removed in conference. But it’s interesting to consider.

First, context: Current law already bans the transfer of detainees to countries that are deemed by the State Department to be state sponsors of terrorism. Those are: Iran, Sudan, and Syria. Current law also already bars the transfer of detainees to countries whose government lacks the capacity to keep an eye on them, which is why the low-level Yemeni detainees are all getting resettled in other countries. UPDATE: And current law already specifically bans transfers to Libya, Somalia, Syria (redundantly) and Yemen.*

Cruz’s provision in the Senate version of the NDAA would go further by banning the transfer of any detainees to countries where the State Department has issued security-related travel warnings to Americans, except for Saudi Arabia. That list is much, much longer: Afghanistan, Algeria, Burkina-Faso, Burundi, Cameroon, Central African Republic, Chad, Colombia, Congo, El Salvador, Eritrea, Haiti, Honduras, Iran, Iraq, Israel, Kenya, Lebanon, Libya, Mali, Mauritania, Mexico, Niger, Nigeria, North Korea, Pakistan, Philippines, South Sudan, Saudi Arabia [however, as noted, it is exempted], Somalia, Sudan, Syria, Tunisia, Turkey, Ukraine, Venezuela, and Yemen.

Comparing that list to the list of the 80 remaining detainees, we see that the most important change this would make would be barring repatriations to Afghanistan. There are two three [Update: new PRB recategorization disclosed today for Obaydullah, whose case I wrote about in this 2012 article] detainees on the list of those recommended for transfer who are Afghans, along with six five other Afghans who are not currently recommended for transfer but someday may be if the parole-like Periodic Review Board decides that it is no longer necessary to keep holding onto them.

Eight other detainees could also, in theory, be affected by this: on the transfer list, a Tunisian, and, on the not currently recommended for transfer list, two Algerians, a Mauritanian, three Pakistanis, and a Palestinian.

Query: By what logic did Cruz decide to exempt Saudi Arabia but not Israel? I’m not sure, but note that as a general matter, the provision explains that it is the “It is the sense of the Senate that countries that pose such a significant travel threat to United States citizens that the Department of State feels obliged to issue a travel warning should not be considered an appropriate recipient of any detainee transferred from United States Naval Station, Guantanamo Bay, Cuba; and if a country is subject to a Department of State travel warning, it is highly unlikely that the government of the country can provide the United States Government appropriate security and assurances regarding the prevention of the recidivism of any detainee so transferred.”

Most of both lists are made up of detainees from countries that are already effectively barred from getting repatriations because their home countries are a mess – especially Yemenis. This is not a coincidence, as for years they have stayed behind while other detainees from more stable countries have left under the Bush and Obama administration, even if those leaving were deemed to pose an equal or greater risk as individuals.

Of course, even if this were to stay in the NDAA, by the time it becomes law there will likely be significantly fewer detainees at Guantanamo. The Obama administration has said it expects to get most or all of the remaining 27 28 detainees on the transfer list out by by the summer – if Secretary of Defense Ashton Carter signs off on the deals the interagency has approved, at least. As of last count, there were already 14 such deals ready to go, so we might see more than a dozen transfers in June if he notifies Congress that he has moved on them, setting off the 30-day waiting period.

* International law separately prohibits sending detainees to countries where they are likely to be tortured or persecuted.

 

 

Senate Armed Services Committee unveils their NDAA, including detention provisions

One of the undemocratic – or at least, untransparent – things about how Congress shapes American national security law is that the armed services and intelligence oversight committees craft their annual authorization bills behind closed doors, sending them to the floor as a fait accompli. (Another is that these bills contain extensive classified annexes, as Dakota Rudesill, a former ODNI official and national-security congressional staffer who is now at Ohio State wrote in a recent academic paper, “Coming to terms with Secret Law,” summarized in this Lawfare post yesterday.)

The Senate Armed Services Committee has now finally unveiled the version of the National Defense Authorization Act for 2017 that it marked up last week. (The House passed its version earlier this week; after the full Senate passes its version, it will go to conference.) Here are the Guantanamo and Islamic State related provisions in the Senate bill – first the index, then the text.

Index

TITLE X—GENERAL PROVISIONS

Subtitle D—Counterterrorism

Sec. 1021. Extension of prohibition on use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to the United States.
Sec. 1022. Extension of prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantanamo Bay, Cuba.

Sec. 1023. Designing and planning related to construction of certain facilities in the United States.

Sec. 1024. Authority to transfer individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to the United States temporarily for emergency or critical medical treatment.

Sec. 1025. Authority for article III judges to take certain actions relating to individuals detained at United States Naval Station, Guantanamo Bay, Cuba.

Sec. 1026. Extension of prohibition on use of funds for transfer or release to certain countries of individuals detained at United States Naval Station, Guantanamo Bay, Cuba.

Sec. 1027. Matters on memorandum of understanding between the United States and governments of receiving foreign countries and entities in certifications on transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba.

Sec. 1028. Limitation on transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, pending a report on their terrorist actions and affiliations.

Sec. 1029. Prohibition on use of funds for transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, to countries covered by Department of State travel warnings.

Sec. 1030. Extension of prohibition on use of funds for realignment of forces at or closure of United States Naval Station, Guantanamo Bay, Cuba.

***

TITLE XII—MATTERS RELATING TO FOREIGN NATIONS

Subtitle C—Matters Relating To Syria And Iraq

Sec. 1221. Extension and modification of authority to provide assistance to the vetted Syrian opposition.
Sec. 1222. Extension of authority to provide assistance to counter the Islamic State of Iraq and the Levant.

Sec. 1223. Extension of authority to support operations and activities of the Office of Security Cooperation in Iraq.

***

Text

Subtitle D—Counterterrorism

SEC. 1021. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE UNITED STATES.

Section 1031 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968) is amended by striking “December 31, 2016” and inserting “December 31, 2017”.

SEC. 1022. EXTENSION OF PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

Section 1032(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968) is amended by striking “December 31, 2016” and inserting “December 31, 2017”.

SEC. 1023. DESIGNING AND PLANNING RELATED TO CONSTRUCTION OF CERTAIN FACILITIES IN THE UNITED STATES.

(a) Designing And Planning Authorized.—Notwithstanding any provision of law limiting the use of funds for the construction or modification of facilities in the United States or its territories or possessions to house individuals detained at Guantanamo, the Secretary of Defense may use amounts authorized to be appropriated or otherwise made available for the Department of Defense for designing and planning related to the construction or modification of such facilities

(b) Individual Detained At Guantanamo Defined.—In this section, the term “individual detained at Guantanamo” means an individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(1) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) or a member of the Armed Forces of the United States; and

(2) is—

(A) in the custody or under the control of the Department of Defense; or

(B) otherwise detained at United States Naval Station, Guantanamo Bay.

SEC. 1024. AUTHORITY TO TRANSFER INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO THE UNITED STATES TEMPORARILY FOR EMERGENCY OR CRITICAL MEDICAL TREATMENT.

(a) Temporary Transfer For Medical Treatment.—Notwithstanding section 1031 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968), or any similar provision of law enacted after September 30, 2015, the Secretary of Defense may, after consultation with the Secretary of Homeland Security, temporarily transfer an individual detained at Guantanamo to a Department of Defense medical facility in the United States for the sole purpose of providing the individual medical treatment if the Secretary of Defense determines that—

(1) the medical treatment of the individual is necessary to prevent death or imminent significant injury or harm to the health of the individual;

(2) the necessary medical treatment is not available to be provided at United States Naval Station, Guantanamo Bay, Cuba, without incurring excessive and unreasonable costs; and

(3) the Department of Defense has provided for appropriate security measures for the custody and control of the individual during any period in which the individual is temporarily in the United States under this section.

(b) Limitation On Exercise Of Authority.—The authority of the Secretary of Defense under subsection (a) may be exercised only by the Secretary of Defense or another official of the Department of Defense at the level of Under Secretary of Defense or higher.

(c) Conditions Of Transfer.—An individual who is temporarily transferred under the authority in subsection (a) shall—

(1) while in the United States, remain in the custody and control of the Secretary of Defense at all times; and

(2) be returned to United States Naval Station, Guantanamo Bay, Cuba, as soon as feasible after a Department of Defense physician determines, in consultation with the Commander, Joint Task Force-Guantanamo Bay, Cuba, that any necessary follow-up medical care may reasonably be provided the individual at United States Naval Station, Guantanamo Bay.

(d) Status While In United States.—An individual who is temporarily transferred under the authority in subsection (a), while in the United States—

(1) shall be deemed at all times and in all respects to be in the uninterrupted custody of the Secretary of Defense, as though the individual remained physically at United States Naval Station, Guantanamo Bay, Cuba;

(2) shall not at any time be subject to, and may not apply for or obtain, or be deemed to enjoy, any right, privilege, status, benefit, or eligibility for any benefit under any provision of the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)), or any other law or regulation;

(3) shall not be permitted to avail himself of any right, privilege, or benefit of any law of the United States beyond those available to individuals detained at United States Naval Station, Guantanamo Bay; and

(4) shall not, as a result of such transfer, have a change in any designation that may have attached to that detainee while detained at United States Naval Station, Guantanamo Bay, pursuant to the Authorization for Use of Military Force (Public Law 107–40), as determined in accordance with applicable law and regulations.

(e) No Cause Of Action.—Any decision to transfer or not to transfer an individual made under the authority in subsection (a) shall not give rise to any claim or cause of action.

(f) Limitation On Judicial Review.—

(1) LIMITATION.—Except as provided in paragraph (2), no court, justice, or judge shall have jurisdiction to hear or consider any claim or action against the United States or its departments, agencies, officers, employees, or agents arising from or relating to any aspect of the detention, transfer, treatment, or conditions of confinement of an individual transferred under this section.

(2) EXCEPTION FOR HABEAS CORPUS.—The United States District Court for the District of Columbia shall have exclusive jurisdiction to consider an application for writ of habeas corpus seeking release from custody filed by or on behalf of an individual who is in the United States pursuant to a temporary transfer under the authority in subsection (a). Such jurisdiction shall be limited to that required by the Constitution, and relief shall be only as provided in paragraph (3). In such a proceeding the court may not review, halt, or stay the return of the individual who is the object of the application to United States Naval Station, Guantanamo Bay, Cuba, pursuant to subsection (c).

(3) RELIEF.—A court order in a proceeding covered by paragraph (2)—

(A) may not order the release of the individual within the United States; and

(B) shall be limited to an order of release from custody which, when final, the Secretary of Defense shall implement in accordance with section 1034 of the National Defense Authorization Act for Fiscal Year 2016.

(g) Notification.—Whenever a temporary transfer of an individual detained at Guantanamo is made under the authority of subsection (a), the Secretary of Defense shall notify the Committees on Armed Services of the Senate and the House of Representatives of the transfer not later than five days after the date on which the transfer is made.

(h) Individual Detained At Guantanamo Defined.—In this section, the term “individual detained at Guantanamo” means an individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(1) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) or a member of the Armed Forces of the United States; and

(2) is—

(A) in the custody or under the control of the Department of Defense; or

(B) otherwise detained at United States Naval Station, Guantanamo Bay.

(i) Applicability.—This section shall apply to an individual temporarily transferred under the authority in subsection (a) regardless of the status of any pending or completed proceeding or detention on the date of the enactment of this Act.

SEC. 1025. AUTHORITY FOR ARTICLE III JUDGES TO TAKE CERTAIN ACTIONS RELATING TO INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) Use Of Video Teleconferencing.—A judge of a United States District Court shall have jurisdiction to take any of the following actions by video teleconferencing with respect to an individual detained at Guantanamo:

(1) Arraign the individual for a charge under the laws of the United States.

(2) Accept a plea to a charge under the laws of the United States.

(3) Enter a judgment of conviction and sentence the individual for a charge upon which the individual is convicted as a result of such a plea.

An action specified in paragraph (1), (2), or (3) may be taken by video teleconferencing only with the consent of the individual.

(b) Venue.—A judge of a United States District Court may act by video teleconferencing under subsection (a) only where such District Court maintains venue concerning the offense alleged.

(c) Transfer To Serve Sentence Of Imprisonment.—The Attorney General may transfer to a foreign country an offender who is convicted of an offense by reason of a plea entered into as described in subsection (a) and who is under a sentence of imprisonment resulting from such conviction. Any such transfer shall be made for the purpose of the offender serving the sentence imposed on him, and shall be made underchapter 306 of title 18, United States Code, without regard to the provisions of section 4107 and subsections (a) and (b) of section 4100 of that title.

(d) Definitions.—In this section:

(1) The term “individual detained at Guantanamo” means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(A) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) or a member of the Armed Forces of the United States; and

(B) is—

(i) in the custody or under the control of the Department of Defense; or

(ii) otherwise under detention at United States Naval Station, Guantanamo Bay.

(2) The terms “imprisonment”, “offender”, “sentence”, and “transfer” have the meanings given those terms in section 4101 of title 18, United States Code.

SEC. 1026. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE TO CERTAIN COUNTRIES OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

Section 1033 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968) is amended by striking “December 31, 2016” and inserting “December 31, 2017”.

SEC. 1027. MATTERS ON MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED STATES AND GOVERNMENTS OF RECEIVING FOREIGN COUNTRIES AND ENTITIES IN CERTIFICATIONS ON TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

Section 1034(b) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 969; 10 U.S.C. 801 note) is amended—

(1) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and

(2) by inserting after paragraph (3) the following new paragraph (4):

“(4) both—

“(A) the United States Government, on the one hand, and the government of the foreign country or the recognized leadership of the foreign entity, on the other hand, have entered into a written memorandum of understanding (MOU) regarding the transfer of the individual; and

“(B) the memorandum of understanding—

“(i) has been transmitted to the appropriate committees of Congress, in classified form (if necessary); and

“(ii) includes an assessment, whether in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or foreign entity, as the case may be, with respect to the matters certified by the Secretary pursuant to paragraphs (2) and (3);”.

SEC. 1028. LIMITATION ON TRANSFER OF DETAINEES AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, PENDING A REPORT ON THEIR TERRORIST ACTIONS AND AFFILIATIONS.

(a) Limitation.—No amounts authorized to be appropriated or otherwise made available for fiscal year 2017 for the Department of Defense may be used to transfer, release, or assist in the transfer or release to any foreign government or foreign entity of an individual detained at Guantanamo until the Secretary of Defense submits to the appropriate committees of Congress a report on the individual that includes the following:

(1) A description of the individual’s previous terrorist activities.

(2) A description of the individual’s previous memberships in or affiliations or associations with terrorist organizations.

(3) A description of the individual’s support for or participation in attacks against the United States or United States allies.

(b) Form.—Each report under subsection (a) shall be submitted in unclassified form, and may not include a classified annex as a means of conveying any information of material significance to such report.

(c) Construction With Other Prohibitions And Limitations.—The limitation in subsection (a) is in addition to any prohibition or other limitation on the transfer or release of individuals detained at Guantanamo under any other provision of law, including the provisions of subtitle D of title X of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 968).

(d) Definitions.—In this section:

(1) The term “appropriate committees of Congress” means—

(A) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

(B) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2) The term “individual detained at Guantanamo” means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and

(B) is—

(i) in the custody or under the control of the Department of Defense; or

(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

SEC. 1029. PROHIBITION ON USE OF FUNDS FOR TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA, TO COUNTRIES COVERED BY DEPARTMENT OF STATE TRAVEL WARNINGS.

(a) Finding.—The Senate makes the following findings:

(1) The Department of State issues travel warnings regarding travel to foreign countries for reasons that include “unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks”.

(2) These travel warnings are issued to highlight the “risks of traveling” to particular countries and are left in place until the situation in the country concerned improves.

(b) Sense Of Senate.—It is the sense of the Senate that—

(1) countries that pose such a significant travel threat to United States citizens that the Department of State feels obliged to issue a travel warning should not be considered an appropriate recipient of any detainee transferred from United States Naval Station, Guantanamo Bay, Cuba; and

(2) if a country is subject to a Department of State travel warning, it is highly unlikely that the government of the country can provide the United States Government appropriate security and assurances regarding the prevention of the recidivism of any detainee so transferred.

(c) Prohibition.—

(1) IN GENERAL.—Except as provided in paragraphs and (2) and (3), no amounts authorized to be appropriated by this Act or otherwise available for the Department of Defense may be used, during the period beginning on the date of the enactment of this Act and ending on December 31, 2017, to transfer, release, or assist in the transfer or release of any individual detained in the custody or under the control of the Department of Defense at United States Naval Station, Guantanamo Bay to the custody or control of any country subject to a Department of State travel warning at the time the transfer or release would otherwise occur.

(2) EXCEPTION FOR CERTAIN WARNINGS.—Paragraph (1) shall not apply with respect to any country subject to a travel warning described in that paragraph that is issued solely on the basis of one or more of the following:

(A) Medical deficiencies, infectious disease outbreaks, or other health-related concerns.

(B) A natural disaster.

(C) Criminal activity.

(3) EXCEPTION FOR CERTAIN COUNTRY.—Paragraph (1) shall not apply with respect to the Kingdom of Saudi Arabia.

SEC. 1030. EXTENSION OF PROHIBITION ON USE OF FUNDS FOR REALIGNMENT OF FORCES AT OR CLOSURE OF UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

Section 1036(a) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 972) is amended by inserting “or 2017” after “fiscal year 2016”.

***

Subtitle C—Matters Relating To Syria And Iraq

SEC. 1221. EXTENSION AND MODIFICATION OF AUTHORITY TO PROVIDE ASSISTANCE TO THE VETTED SYRIAN OPPOSITION.

(a) Notice On New Initiatives.—

(1) IN GENERAL.—Subsection (f) of section 1209 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3541), as amended by section 1225(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 1055), is further amended to read as follows:

“(f) Notice To Congress Before Initiation Of New Initiatives.—Not later than 30 days before initiating a new initiative under subsection (a), the Secretary of Defense shall submit to the appropriate congressional committees a notice setting forth the following:

“(1) The initiative to be carried out, including a detailed description of the assistance provided.

“(2) The budget, implementation timeline and anticipated delivery schedule for the assistance to which the initiative relates, the military department responsible for management and the associated program executive office, and the completion date for the initiative.

“(3) The amount, source, and planned expenditure of funds to carry out the initiative.

“(4) Any financial or other support for the initiation provided by foreign governments.

“(5) Any other information with respect to the initiative that the Secretary considers appropriate.”.

(2) EFFECTIVE DATE.—The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act, and shall apply with respect to new initiatives initiated under section 1209 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 on or after the date that is 30 days after the date of the enactment of this Act.

(b) Extension Of Authority.—Subsection (a) of such section is amended by striking “December 31, 2016” and inserting “December 31, 2019”.

SEC. 1222. EXTENSION OF AUTHORITY TO PROVIDE ASSISTANCE TO COUNTER THE ISLAMIC STATE OF IRAQ AND THE LEVANT.

(a) In General.—Section 1236(a) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3559) is amended by striking “December 31, 2016” and inserting “December 31, 2019”.

(b) Additional Assessment On Certain Actions By Government Of Iraq.—Subsection (l)(1)(A) of such section, as added by section 1223(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92. 129 Stat. 1050), is amended by striking “120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2016” and inserting “each of March 25, 2016, and the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2017”.

SEC. 1223. EXTENSION OF AUTHORITY TO SUPPORT OPERATIONS AND ACTIVITIES OF THE OFFICE OF SECURITY COOPERATION IN IRAQ.

(a) Extension.—Subsection (f)(1) of section 1215 of the National Defense Authorization Act for Fiscal Year 2012 (10 U.S.C. 113 note) is amended by striking “fiscal year 2016” and inserting “fiscal year 2017”.

(b) Amount Available.—Such section is further amended—

(1) in subsection (c), by striking “fiscal year 2016” and all that follows and inserting “fiscal year 2017 may not exceed $60,000,000”; and

(2) in subsection (d), by striking “fiscal year 2016” and inserting “fiscal year 2017”.

Michael Brenner’s confused critique

Someone named Michael Brenner has been circulating a lengthy critique of Power Wars, including distributing a version to his listserv [to which he unilaterally adds the e-mail addresses of people] on Thursday, uploading a version to Consortium News on Saturday, and uploading another version as a Huffington Post blog yesterday. It opens with a flattering thought – that my book is “much discussed” and is “destined to be a landmark in the writing of the period’s history.” But Brenner goes harshly critical from there, portraying the book as credulous and full of omissions, hinting that its alleged failings may have been bad faith on my part, and eventually abandoning the book to just express his negative views of the Obama administration as having institutionalized illegality in the war on terror.

I’ve been torn about whether to respond to Brenner for reasons – as will become clearer below – of compassion. On the one hand, his criticism is unnecessarily snide and personal, e.g. “Savage seems oblivious of this reality — or else, does a good job of pretending so.” On the other hand, his critique is so riddled with basic errors – like Gilda Ratner’s Saturday Night Live character Emily Latella, who would rant on the basis of a misunderstanding, then say “nevermind”  – that I felt vicariously embarrassed for him. He seems to be a retired professor and has a page on the University of Pittsburgh website that lists various “papers,” although the most recent is from 2008 and several are just  Microsoft Word files with little prose poems about political figures.

Unfortunately, Brenner keeps revising and circulating this essay to various places, and two people have now forwarded it to me. So I’m going to just point out a few of Brenner’s most egregious factual misunderstandings.

  1. Brenner keeps referring to this law, “The Patriot Act.” I do not think it means what he thinks it means.

He goes on and on for paragraphs about the Patriot Act (e.g., “The place of the Patriot Act in these lawyerly discourses is of central importance”) when the context shows that he is actually talking about the Authorization for Use of Military Force. Since the repeated mistake has stayed in as he has edited and re-edited versions of this, it was not a stray oversight. No one with a competent grasp of post-9/11 issues would make this mistake.

  1. Brenner somehow totally missed a lengthy discussion of the CIA-Senate Intelligence Committee fight in the book.

He spends three paragraphs about how “Savage’s lengthy account has another, more glaring omission. He makes no reference to the White House/CIA hacking of the Senate Intelligence Committee computers in Fall 2014 at the time of the standoff over release of the Committee’s report on rendition and torture. … Is this not arguably an impeachable offense? Why does Savage totally ignore it?”

Chapter 10, Section 13 is titled “The CIA versus the Intelligence Committee,” and it may be found on pages 512-515. The foundations for that fight are foreshadowed in Chapter 4, Section 6, “Seeds of the Senate Torture Report,” on pages 114-116, and in Chapter 8, Section 6, “Hair on Fire (Executive Privilege II)” on pages 432-435.

  1. Brenner complains that the book has no index, so it is “likely that most reviewers, therefore, have only a faint knowledge of its contents.”

The book has a 48-page index. As a page says in the spot where indexes go, after the endnotes, the full index is available online at charliesavage.com/powerwarsindex. This is also cited in the table of contents.

  1. Brenner misses many examples of the law mattering in the Obama era.

He maintains that “Savage can cite only two instances” of “where the White House did not do what it wanted to do – or where the President felt compelled to override a contrary interpretation by his lawyers in order to act as he was inclined.” One was the Libya War Powers Resolution episode and the other is the fight over whether Al Shabab in Somalia was targetable as a group.

Brenner seems not to have noticed the issue of failing to close Guantanamo due to Congressional transfer restrictions, a topic that consumes more pages of the book than any other. There’s also not bringing Dacduq out of Iraq. Not targeting al-Farekh. Starting to provide notice to criminal defendants when they faced evidence derived from FISA Amendments Act surveillance. Not granting deferred action to undocumented parents of DREAMers. That’s before you get to places where the law pushed them away from their initial inclinations prior to any final decision, like not bombing the bin Laden compound. Here’s a blog entry listing even more, derived from the book.

  1. Brenner writes that the Obama lawyers were just trying to come up with a baseball-like “in the vicinity” rule, except it was all secret memos and FISA court opinions the public had no access to, and that I seem “oblivious” of this reality.

Reflecting on the legitimacy of invoking merely “legally available” theories, especially where the law may be indeterminate or non-justiciable, and more broadly on whether the difference in lawyering between the Bush and Obama administration makes any difference in the end, is a central theme of the book. (See, e.g., pages 66-67, 151, 264, 647-648, 677-681, 687-688, 690-695).

The issue of “secret law” found in secret FISA court precedents and secret memos gets an entire chapter. (Chapter 9: “Secrecy and Secret Law,” found on pages 415-473.)

  1. “Context is the big missing ingredient in Savage’s 700 plus page opus. Fear and dread permeated the government as it did the country. President Obama’s one fixed reference point from the day he entered office was to avoid another traumatic act of terrorism that likely would make him a one-term President.”

The first and third chapter is all about this establishing this context, although I situate it as kicking in viscerally with the Christmas 2009 underwear bombing attack, rather than Inauguration Day.

I could go on, but I think the point is made.

Do the upstream v. Prism collection numbers from Judge Bates’ 2011 opinion add up?

Edit: Bottom line up front: Several widely cited numbers about the FISA Amendments Act warrantless surveillance program — that circa 2011 the NSA was collecting >250 million communications annually, of which 9 percent came from upstream and 91 percent came from Prism — may be inaccurate.

_________

On Medium, Beatrice Hanssen, a writer whom I have not encountered before, has published a lengthy and interesting essay taking a closer look at Judge John Bates’ October 2011 ruling about the FISA Amendments Act and upstream collection — the one about Multi-Communication Transactions (MCTs) which the government declassified in August 2013 after the Snowden leaks.

[Background: a MCT is when multiple messages are bundled together and transmitted over the Internet as a unit. If even one of them has a targeted selector, like the e-mail address of a foreign suspect, the NSA’s Upstream collection system will get a copy of all of them — even though the rest of the messages have nothing to do with the target.]

The Bates opinion, and coverage of it, focused on the issue of wholly domestic messages that got sucked in via MCTs – there were several thousand of them. But Hanssen argues that an element of this has been underappreciated: various figures in footnote 32 of the Bates opinion suggest that the NSA is taking in about 2.65 million MCTs a year. While most of them do not have wholly domestic messages, this is nevertheless a potentially huge amount of collection – depending in part on what the average number communications bundled together into a single MCT is, which we don’t know. She argues that this means upstream surveillance conducted under the FISA Amendments Act is bulkier than generally portrayed. She also complains that the judges who dismissed the two big legal challenges to upstream, Jewel and Wikimedia, have conflated the distinction between transactions and communications when citing the Bates opinion, obscuring the volume of messages the NSA is ingesting.

That seems right to me. Still, once you get away from the special legal problems raised by the warrantless collection of wholly domestic messages on domestic soil, it strikes me as a probably less voluminous parallel to the issues raised by Executive Order 12333-authorized bulk collection. (Indeed it is possible that many or most of the MCTs would be redundantly captured by both systems.) Both raise the question of how we think about the privacy rights of “innocent foreigners,” as she puts it, as well, I would add, about incidental collection of one-end-domestic communications.

Beyond that, though, in thinking about her essay, it also occurred to me that some widely cited numbers derived from Bates’ opinion in common circulation  may be questionable. Specifically, Bates wrote that the NSA had told him that it collects “more than 250 million Internet communications” a year via the FISA Amendments Act, of which about 91 percent came from the Prism system and about 9 percent came from upstream. (Page 30-31)

Those figures have been echoed in a lot of places. Here they are in a Washington Post article, citing the opinion. The 250 million figure also shows up in the Privacy and Civil Liberties Oversight Board report about the FISA Amendments Act, also citing the opinion. And I cited them on page 217 of my book.

But is it possible that Bates was mixing apples and oranges? Or, rather, conflating “communications” – meaning discrete messages – with “transactions” – which, in MCT form, each contain many messages?

When we look closer at the total number of MCTs Hanssen draws our attention to, these figures start to look dubious. The footnote suggests that the NSA collects 26.5 million upstream transactions a year, of which 10 percent are MCTs, hence 2.65 million of those. If we assume that Bates was counting every transaction, singular or MCT, as one communication, the math kind of works: 26.5 million messages contributed by upstream is fairly close to 9 percent of >250 million total messages.

But once you think about the 2.65 million MCTs as each contributing multiple messages, the math starts to break down fast. When I asked ODNI a question about this during a briefing call with reporters when the ruling was released, the briefer used an example in which one MCT contained 15 discrete e-mails. That example, as Hanssen notes, would transform the 2.65 million MCTs into 39.75 million communications. Add in the other 23.85 million upstream transactions that were  single messages, and upstream has contributed 63.6 million messages to the annual haul — in this hypothetical.

We don’t know what the right average multiplier is — 15 could be too high, but it could also be too low. Still, it sure looks reasonable to conclude that either there were significantly more than 250 million total communications collected annually under the FISA Amendments Act circa 2011, or that upstream’s contribution to the whole was significantly more than 9 percent. Or both.