Power Wars: Clarifications and Errata

My hope for Power Wars is that people will still be using it many years from now as the definitive investigative history of post-9/11 policymaking in the Obama era. So I want it to be as clear and accurate as I can make it. To that end, I have made some adjustments in subsequent printings.

First, since I turned in the book in August, I found a few places where I used the same word twice in awkwardly close proximity; instances where I referred to people by their last names when I had not mentioned them before or not for many pages; etc.  I also found several places where I could express certain thoughts with greater clarity. So I have tweaked such things as I found them.

Second, in a few places, more information subsequently became available and so I added it – sometimes trimming other bits to make room for it on the page. In September, as a result of one of my Freedom of Information Act lawsuits with the New York Times, the government declassified additional portions of the inspector general report on the Stellarwind surveillance program, revealing a previously hidden dimension to the 2004 “hospital room” crisis.  And I also learned additional details about the lawyering for the Osama Bin Laden raid, which were reflected in my Times article last week that was largely derived from the book. The original print run of the hardcover, for example, says CIA general counsel Stephen Preston delivered a briefing in the Situation Room sometime in late March or early April 2011. By the time of my Times article, I knew it was on April 12, 2011. Future printings of the book will have this additional information.

Most importantly, some of the information I gathered after August improved my level of knowledge about the Bin Laden raid lawyering. As reflected in my Times article, it was Mary DeRosa, the NSC legal adviser, not Preston, whose project was to write the memo explaining why it would be lawful for Obama to order a mission with the objective of killing Bin Laden (subject to a requirement to accept a surrender offer if feasible). I also now think it missed the mark to portray the four lawyers as having “construed extremely narrowly what kind of surrender offer would count as possible to accept.” The military already had rules of engagement for Special Operations Forces raids on potentially booby-trapped terrorist compounds, so a better way to frame it is that the lawyers discussed the implications of authorizing a kill mission and scenarios in which the SEALs might deem apparent surrender offers infeasible to accept. Finally, the early print run said there was a policy memo by DeRosa about legal issues raised by putting SEAL Team Six under CIA direction, but I now think that was a conflation with the paperwork I separately discussed Jeh Johnson, the Pentagon general counsel, preparing for the Defense Department to loan SEAL Team Six to the CIA. I am making these updates for future printings, and they are already included in the e-book version.

Power Wars Documents: Violating the Notice Law for the Bergdahl Prisoner Exchange Deal

This is a set of documents related to the Obama administration’s disputed decision to transfer five higher-level Taliban detainees to Qatar as part of the prisoner exchange deal for Sgt. Bowe Bergdahl, who had been captured by the Taliban in 2009 after wandering off his outpost and was being held under horrific conditions. I discuss this controversy and these documents in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl.”

This was the first time the Obama administration violated the statutory transfer restrictions on Guantanamo, citing (in part) his constitutional powers.

The deal was politically controversial for several reasons, but only one had a legal hook: the Obama administration had not followed one of the Guantanamo transfer restrictions requiring the defense secretary to give Congress 30 days advanced notice before any detainee departed the wartime prison. Republicans said the Obama administration had violated that law, as well as a law forbidding the expenditure of funds not appropriated by Congress. (The transfer restrictions are pegged to Congress’s power of the purse.)

The defense secretary, Chuck Hagel, told Congress that the substantive requirements of the statute had been met – he was satisified the transfer was in the national security interest of the United States, and that the risk of recidivism had been substantially mitigated. But the administration, saying that waiting once the deal was struck would have endangered Bergdahl’s life, did not adhere to the 30-day waiting period.

In its defense, the administration made a strained statutory argument – that Congress had not intended the statute to apply to prisoner exchanges – but backed it with a constitutional argument: if the statute did apply to prisoner exchanges like the Bergdahl deal, then it violated President Obama’s constitutional authority, as commander-in-chief, to protect the lives of Americans and servicemen abroad, and he could lawfully violated it.

This resulted in a back and forth with the Government Accountability Office, a congressional watchdog, in which Pentagon laid out its legal thinking. The administration also said that the Justice Department – meaning the Office of Legal Counsel, led by Karl Thomspon – agreed with it.

Power Wars Document: Rice’s memo to Hagel on risk and transferring Guantanamo detainees

This document, whose full text has not previously been made public, is a three-page memo that Susan Rice, Obama’s national security adviser, sent to Chuck Hagel, then the secretary of defense, in May 2014. (The existence of this memo has been previously reported.) I discuss it in Chapter 10, Section 14: “Risk Aversion.”

At the time, Hagel was dragging his feet on approving transfers of lower-level detainees to other countries. Part of the Congressional transfer restrictions required the defense secretary to tell Congress, at least 30 days before any transfer from Guantanamo, that he had personally decided that the transfer was in the national security interest of the United States and that the threat of post-release terrorism by the detainee had been substantially mitigated, including by security arrangements with the receiving country.

This law has had the effect of making the defense secretary, essentially, personally accountable if a former detainee goes on to engage in terrorism, and a series of defense secretaries – Bob Gates, Leon Panetta, Hagel, and later Ashton Carter – have at times displayed reluctance to move quickly on approving proposed transfer deals.

In the spring of 2014, as Hagel was dragging his feet, national-security officials drafted this memo and Rice signed it. Saying she was speaking for President Obama, Rice instructed Hagel to interpret his statutory duties in a way that would be more favorable to winnowing down the detainee population.

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Power Wars Document: Office of Legal Counsel white paper on amendment barring prosecution of the 9/11 case in civilian court

This previously undisclosed document is a five-page summary of an unsigned, unofficial “white paper” developed by the Justice Department’s Office of Legal Counsel. It was written in January 2010 by David Barron, then the acting head of the office and now a federal appeals court judge.  I discuss it in Chapter 7, Section 2: “Democrats Get to be President, Too.”

The topic was the so-called Graham Amendment, a proposal Senator Lindsey Graham, Republican of South Carolina, put forth to bar the use of funds to prosecute anyone over the Sept. 11, 2001, terrorist attacks in civilian court. Graham’s idea was essentially to force President Obama to reverse Attorney General Eric Holder’s plan to prosecute Khalid Sheikh Mohammed and four other Guantanamo detainees accused of aiding the Sept. 11 attacks in federal court in New York, leaving Obama and Holder with no option but to return the case to a military commission.

Barron’s conclusions were only tentative, and they were contested by some within the Obama administration legal team – especially by Harold Koh, the State Department legal adviser, who thought it was unduly timid about the president’s constitutional powers as top commander/prosecutor to charge suspects in the venue he thought best. But the white paper, and the internal debate over whether it was correct, represented the first serious engagement by the administration with a legal policy question that would prove to be vexing for the president’s troubled policy goal of closing the Guantanamo prison: to what extent does the Constitution permit Congress to tie the president’s hands when it comes to dealing with wartime detainees – including where to transfer and detain them, where to prosecute them, and when and where to let them go?

 

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Power Wars Document: Lindsey Graham’s grand bargain proposal over Guantanamo

This previously undisclosed document is a proposal Senator Lindsey Graham, Republican of South Carolina, developed in 2009. It was a starting point for what became lengthy but unsuccessful negotiations with the Obama White House over a grand bargain on detainee policies. (The existence of those negotiations has been reported.) I discuss it in Chapter 4, Section 12: “A Temptation to Entrench Gitmo-​Style Policies.”

Obama had promised to close Guantanamo, and his administration crafted a plan; its centerpiece was to bring every detainee who was deemed too dangerous to release into the United States for continued wartime detention in another prison or for prosecution. But Obama’s plan soon ran into resistance from Congress. The first phase of opposition had been Congress’s imposition, in the early summer of 2009, of a ban on releasing any detainees inside the United States to live freely on domestic soil (though Obama remained free to bring them to a domestic prison), and a requirement to notify lawmakers ahead of time before transferring anyone to another country. The Graham pushback, beginning later that summer, started the second phase of resistance.

Under a framework Obama had outlined in a speech at the National Archives, as many as possible would be prosecuted in civilian court, with charges before a military commissions as a backup option. Some irreducible minimum of untriable but unreleasable detainees would be held in continued indefinite law-of-war detention, subject to parole-like periodic reviews. Because newly captured terrorists would be easier to prosecute – criminal laws against providing material support for terrorism had been expanded after 9/11, and no one was going to be tortured anymore – it was not clear whether anyone other than legacy detainees inherited from the Bush administration would fall into the law-of-war category.

Senator Graham was a strong supporter of using military commissions and interrogation in military confinement (though he staunchly opposed torture) rather than handling terrorism suspects in the civilian criminal justice system. He proposed providing some Republican political support for Obama’s Guantanamo closure plan – which would need funding from Congress to build or modify a replacement prison in the United States, among other things – which would also help wavering Democrats support it. In return, he wanted Obama to embrace using military commissions as the primary option, not the exception, and to take newly captured terrorism suspects to the replacement facility. The White House negotiated off and on with Graham into mid-2010, but they ultimately struck no deal.

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The first review of Power Wars, and my response

The New York Times has published the first review of Power Wars. They commissioned James Mann, a non-NYT staffer and the author of Rise of the Vulcans and The Obamians, to write it to avoid the appearance of a conflict of interest.

Mann’s review is generally very positive, and he engages thoughtfully with some of the major themes of the book. Among other things, he writes, Power Wars “will almost certainly stand as the most comprehensive account of the Obama administration’s policies, views, theories and bureaucratic battles over national security laws and the legacy of the 2001 attacks. His account is thoughtful and consistently fair-minded.”

Thank you!

On the other hand, Mann notes that the book is over 700 pages and “catalogs virtually all the legal disputes over counterterrorism in the Obama era, all the justifications, procedural steps and bureaucratic battles,” which he says hurts it as a user-friendly narrative from the perspective of an ordinary reader. Much of this material, he writes, “will be of more interest to national-security professionals and law students than to a broader audience.”

This criticism is generally fair. It’s a long book with a wide aperture for its subject matter, and I really try to drill down on what was going on with each fight. I think lots of readers will be interested in this material – I’m fascinated by it, obviously – not just specialists, but I am sure some may in places choose to scan certain chapter subsections, depending on their relative interest in surveillance vs drones vs Gitmo vs leak investigations, etc. But the thing is, I envisioned this book as a definitive investigative and explanatory history, one that explored clashes of ideas in the post-9/11 era. So my only quarrel with Mr. Mann’s critique is his characterization of its heftiness as a “failing.” From my vantage point, this is not a bug but a feature! This is the book I wanted to write.

Upstream Internet Surveillance Confusion

A Federal District Court judge today threw out the ACLU-led challenge to the NSA’s warrantless upstream surveillance of one-end-foreign Internet communications under the FISA Amendments Act, ruling that the plaintiffs, including Wikimedia Foundation, had not established standing. The case touched on an article that I wrote in August 2013, early in the post-Snowden leak era, that is worth commenting on because subsequent revelations have given us a better understanding of how upstream Internet surveillance under that statute works.

Back in the summer of 2013, I figured out that the NSA was not just collecting messages to and from targeted foreigners, but also those that were merely “about” such foreigners but between two other people. This turned out to be a side consequence of how “upstream” style surveillance – collection of e-mails and other text-based communications as they cross fiberoptic Internet switches – works: it grabs any message with a targeted selector, whether the selector was in the e-mail header (“To: target@email.com”) or in the e-mail body (“Hey when you get there, send a message to target@email.com so he knows it worked out.”) This feature is alien to phone wiretapping, and we had not before understood that the government was doing this.

In that article I also wrote what I had figured out at the time about how Upstream-style worked:

 

To conduct the surveillance, the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border. The senior intelligence official, who, like other former and current government officials, spoke on condition of anonymity because of the sensitivity of the topic, said the N.S.A. makes a “clone of selected communication links” to gather the communications, but declined to specify details, like the volume of the data that passes through them.

In the ACLU/Wikimedia case, the plaintiffs cited this article to argue that the NSA had temporarily copied their communications, giving them standing. The judge today rejected that this had been shown to be true. He cited a passage in a July 2014 Privacy and Civil Liberties Oversight Board report about the FISA Amendments Act saying that my article put forth “a misunderstanding of a more complex reality.”

This echoed another judge’s ruling in February 2015, in an Electronic Frontier Foundation-led case, which threw out much of a lawsuit on behalf of AT&T customers against the National Security Agency based on state-secrets claims. It also focused on Upstream. The judge said that, based on his reading of classified documents, their description of how it works, which echoed the one I had written in 2013, was incorrect, but did not elaborate.

But we now understand better what is going on.

Last summer, working with ProPublica and some previously undisclosed Snowden documents, I helped write an article focused on AT&T’s role in facilitating NSA surveillance of Internet communications. Among other things, we figured out an important aspect: the NSA is not directly performing the copying and sifting. Rather its telecom partners do that on its behalf, using the selectors (and in some cases the equipment) the government supplied, and forwarding only those messages the NSA has legal authority to collect. So the NSA is not coming into direct possession of the fulltake data stream. As we wrote:

Many privacy advocates have suspected that AT&T was giving the N.S.A. a copy of all Internet data to sift for itself. But one 2012 presentation says the spy agency does not “typically” have “direct access” to telecoms’ hubs. Instead, the telecoms have done the sifting and forwarded messages the government believes it may legally collect.

“Corporate sites are often controlled by the partner, who filters the communications before sending to N.S.A.,” according to the presentation. This system sometimes leads to “delays” when the government sends new instructions, it added.

The companies’ sorting of data has allowed the N.S.A. to bring different surveillance powers to bear. Targeting someone on American soil requires a court order under the Foreign Intelligence Surveillance Act. When a foreigner abroad is communicating with an American, that law permits the government to target that foreigner without a warrant. When foreigners are messaging other foreigners, that law does not apply and the government can collect such emails in bulk without targeting anyone.

Privacy advocates, confronted with this complexity, argue that it doesn’t make any difference – if the telecoms are doing something they would not normally do because the government has asked or directed them to do it, then they are effectively N.S.A. agents at that moment and the Fourth Amendment still applies. Their argument, in other words, is that actually the description as I wrote it two years ago, when I didn’t yet understand the role of the telecoms, was nevertheless correct, as a legal matter.

That is an interesting argument. If a court ever lets a plaintiff gets to the merits, rather than throwing cases out on standing or on state-secrets grounds, it would be a central question to litigate.