Charlie Savage

Stephen Griffin and I have been discussing the myth that all presidents since Nixon have deemed the War Powers Resolution’s 60-day clock to be unconstitutional. (Griffin #1, me #1, Griffin #2, and now this from me.) In sum, we agree it’s a myth because Democratic presidents have taken the opposite position, but we disagree about whether post-Reagan Republican administrations’ hostility to the provision rose to the level of those three presidents consistently taking the position that it was unconstitutional (Griffin’s view), or whether it instead merely amounted to hints and largely behind-the-scenes mutterings by legal advisers, in which case no actual precedent for the proposition that the 60-day-clock is unconstitutional has yet to be established under presidents of either party (my view).

We may be running out of steam, but I want to make three points.

First, the most important marker here is Reagan’s signing statement in 1983 about Lebanon, which Griffin’s original blog post described as “taking the position” that the 60-day clock is unconstitutional. I’d like to point out that in his 2013 book, Long Wars, Griffin describes that signing statement much less definitively and closer to my view that it stopped short of affirmatively taking a position. Specifically, on page 173, he writes that Reagan “appeared to suggest that the statute might infringe on his powers as commander in chief” (my emphasis). So I agree with his earlier formulation!

Second, in his latest post, Griffin also brings up a 1987-88 operation in the Persian Gulf in which Reagan dispatched the navy to escort oil tankers toward the tail end of the Iran-Iraq War. The American naval vessels were at risk of being hit by an Iranian mine or missile. The Americans also occasionally fired, including on an Iranian helicopter suspected of laying mines in 1987. (To say nothing of the Americans mistakenly shooting down a civilian Iranian airliner, killing 290 people, in 1988, after the WPR dispute had run its course.) Griffin says this didn’t register as a WPR 60-day-clock precedent because “it’s pretty clear Republicans already believed the WPR was unconstitutional.”

My take: There was a WPR dispute about this operation, but  it was another example of a dispute over when the statute applied, not an instance in which Reagan acknowledged that the provision applied but acted in defiance of it based on a constitutional theory. The Reagan administration claimed that sending American naval ships to escort tankers did not constitute the sort of hostilities covered by the WPR, so it provided no WPR notice to Congress in the first place (the 60-day clock starts ticking when such a notice is made). This article in the New York Times from 1987 makes this clear:

Some experts say the law is less useful in ”gray areas,” such as the Persian Gulf, where the United States decision to escort oil tankers does not fall under usual definitions of war.

”When you get to a real war question, such as sending troops to Nicaragua, the War Powers Act is a powerful instrument in the political process,” said Fred Wertheimer, president of Common Cause, the public affairs lobby.

But there is wide agreement in both branches of Government that the Persian Gulf crisis has illuminated some serious flaws in the War Powers Act, and one prime problem is when the measure actually applies.

To many Administration critics, all doubts about the law’s relevance were erased last month when a United States helicopter fired on an Iranian ship that it said was laying mines. ”If that’s not being involved in imminent hostilities,” Senator Sasser complained, ”I don’t know what is.”

The Administration itself was divided, with Howard H. Baker Jr., the White House chief of staff, arguing that the law did apply to the Gulf. But he was overruled, and one senior official said the White House position now is that ”the situation in the Persian Gulf does not justify notification under the War Powers Act.”

Third, Griffin suggests that media reports in New York Times (from a generation ago) contributed to the larger misimpression that all presidents have taken the view that the 60-day clock is unconstitutional. In his latest blog item, Griffin observes that in the 1980s the executive branch (starting with Reagan’s 1983 signing statement about Lebanon) “began pushing back against what were seen as congressional encroachments in matters of national security.  This resulted in some NYT articles (as I remember written by Stuart Taylor) that contributed to the idea that presidents had generally rejected the WPR.”

That’s interesting, and he may be right that oversimplified or sloppy reporting was a contributing factor. I decided to look up the article(s) to see what they said, just to explore the topic. So the rest of this blog post is no longer a rebuttal to Griffin — it’s just looking at what NYT articles from the 1980s said.

It may be Griffin is remembering this 1983 article by Taylor about whether the Grenada invasion was legal, because none of the others in the NYT archives with Taylor’s byline and the words “War Powers Resolution” seems remotely on point. But it may also be that Taylor didn’t write the one Griffin is recalling at all, because this article doesn’t say anything about other presidents. The only relevant bit is about 2/3 down. After describing how Reagan notified Congress about the invasion “consistent with” the WPR but didn’t use the language for when the 60-day clock is triggered, echoing Reagan’s earlier squirrely approach with whether the WPR applied to peacekeeping forces in Lebanon, Taylor obliquely references the Reagan signing statement about Lebanon like this:

Mr. Reagan’s failure to refer to ”hostilities” resembles his recent refusal to acknowledge or report that the marines in Lebanon were involved in ”hostilities” within the meaning of the 1973 resolution, and his suggestion that the 90-day [sic] limitation was unconstitutional.

Notably, in Long Wars, Griffin makes a similar argument about NYT articles contributing to this misunderstanding but instead cites two articles by other reporters. To wit, also on page 173, he wrote:

Ignoring the Carter OLC opinion that the WPR was constitutional, the Reagan and Bush I administrations took the line that every president since Nixon had challenged the constitutionality of the law while in office, the sixty-day clock in particular.[119] While the record was far more complex than indicated by this simple statement, it was so widely reported in the press that the notion was difficult to debunk.[120]

[119] This is reflected in newspaper stories of the period. See Wayne King and Warren Weaver Jr., “Briefing: Department of Hostilities,” N.Y. Times, March 29, 1986; Steven V. Roberts, “War Powers? What War Powers?,” N.Y. Times, Oct. 6, 1987

[120] Barron and Lederman, “History,” at 1070 n. 529 [PDF 131 here]

One of these articles Griffin’s endnote 119 cites is the one I just quoted above, about the 1987 tanker escort operation. In that article, Steven Roberts did indeed remark in passing that “All Presidents since Mr. Nixon have challenged the constitutionality of the law.”  I would put this remark in the category of oversimplifying the WPR as a single thing whose constitutionality may be in doubt, when it’s really a collection of different provisions. See my first post about how just because Section 2 and its purported limits on the initial introduction of forces into combat has been challenged, that doesn’t mean Section 5(b)’s 60-day-clock is also unconstitutional.

The other article Griffin’s endnote 119 cites, the March 29, 1986, one by King and Weaver, was about a dispute between the Reagan administration and the (Democrat-controlled) House Foreign Affairs Committee about Reagan’s unilateral decision to send aircraft carriers into the Gulf of Sidra, leading to an exchange of missiles with forces of Libya, on March 23-24, 1986. Libya’s leader, Muammar Gaddafi, was trying to claim 62 nautical miles out as its territorial waters rather than the usual 12 nautical miles from a nation’s shore, triggering a freedom-of-navigation dispute not unlike what is happening off the coast of China today.

The question was whether this amounted to introducing forces into “hostilities” of the sort that required advance consultation with, and notice to, Congress, under Section 2 and 4 of the WPR. (If it did, and the operation was still happening two months later, then that would raise a clock issue at that time. But the operation was over within a few days. So this dispute was instead sparked by Reagan’s failure to consult Congress ahead of time and provide a formal WPR notice about it.)

The King and Weaver article says:

The War Powers Resolution, passed over a Presidential veto, was a reaction to the undeclared war in Vietnam and was intended to limit Presidential discretion in sending American troops into hostilities without consent of Congress. Opposed by every President since it was enacted, it says the President must consult with Congress before introducing the armed forces ”into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

The Foreign Affairs Committee complained in a letter to the White House that sending the Sixth Fleet into the Gulf of Sidra, fully expecting a military reaction from Libya, constituted just such a situation.

But yesterday, in a letter to the committee signed by William L. Ball, assistant to the President, the Administration said it did not believe that ”the resolution was intended to require consultation before conducting naval maneuvers in international waters or air space” – an interpretation that would eliminate roughly two-thirds of the world from provisions of the resolution if the action was characterized as ”maneuvers.”

The letter said that the question had been ”carefully considered” and that Administration lawyers had concluded, ”The operations did not place United States forces into hostilities or into a situation where imminent involvement in hostilities was clearly indicated by circumstances.”

So: First, this was, obviously, another dispute about statutory interpretation — whether the WPR applied to the situation at hand, not whether some or all of the WPR was unconstitutional. Second, it was not about the 60-day clock provision.

Finally, obviously, saying that every president has opposed a law is not the same thing as saying that every president has considered that law to be unconstitutional; one can oppose something as a bad idea and even think Congress should repeal it — like supporting the unsuccessful 1995 attempt to repeal the WPR — without also thinking that Congress had no constitutional authority to enact it in the first place. But Griffin may be right that ordinary readers might not catch that distinction, so this could also have been a contributing factor in the rise of the myth.

At this point I doubt anyone other than the two of us are still paying attention, so I’ll stop nerding.

Last week, over at Balkinization, Stephen Griffin took issue with a brief passage in my book Power Wars. In chapter 12, I tell the story of the Obama administration’s internal fight and agonies over the War Powers Resolution’s 60-day limit for unauthorized hostilities during NATO’s 2011 air war in Libya. Congress appeared to be unable or unwilling to vote for an authorization at that political moment, and Obama, for operational reasons, did not want to stop American fighters and drones from being able to fire missiles at pro-Gaddafi forces. But he and his legal team also did not want to become the first administration to declare the 60-day clock law to be an unconstitutional constraint on the president’s commander-in-chief powers — even though some members of Congress (including Boehner and McCain) thought that it was, and even though taking that position would have solved their problem. Instead of creating such a constitutional precedent, they came up (to both internal and external controversy) with a narrow interpretation of the term “hostilities” under which the clock provision did not apply to what the U.S. was doing over Libya. In setting up that dilemma, I noted that “There is an oddly widespread myth that every president since Nixon has declared this limit to be unconstitutional. This is simply false.”

Griffin agrees with me that it is false when people say (as people, including some who should know better, weirdly do, over and over) that all presidents since Nixon have declared the 60-day clock to be unconstitutional. But he maintains that a partisan split has emerged, and “Republican presidents, starting with Reagan in 1983, have indeed taken this position consistently.  I demonstrate this at length in [his 2013 book] Long Wars. In other words, the available evidence supports the proposition that the two parties disagree over the scope of presidential war powers and this has created a bifurcated legal reality.”

Griffin had said something similar in a blog post in 2011 on Balkinization, responding to something similar I had written in the midst of the Libya controversy. I don’t think he and I actually disagree about much – it boils down to what it means for a president or administration to actually declare something or affirmatively take a position or even establish a precedent, versus just sort of grumble about something vaguely.

In this post, I explore the issue more deeply. I’ve also curated a set of relevant documents, which I include at its end.

Preliminary matter #1: historical contingency

For the most part, the issue has not come up very often. Presidents got authorization for major wars (Gulf War, Afghanistan/Al Qaeda, Iraq). Most minor wars or combat was over long before 60 days (invasions of Grenada and Panama, one-off bombings like Libya in 1986). And, in the case of peacekeeping operations like Somalia, presidents maintained that fighting was too intermittent to count as the sort of “hostilities” that triggered the clock. The big outliers were Clinton’s Kosovo air war in 1999 and Obama’s Libya air war in 2011, both of which were resolved with the administration making a disputed statutory interpretation rather than a constitutional override claim.

Preliminary matter #2: when people say the “War Powers Resolution” is unconstitutional, it’s important to clarify what they’re talking about specifically.

One source of confusion about the War Powers Resolution is that the act contains several parts that people sometimes get sloppy and conflate.  Even if some parts of the WPR are unconstitutional, that doesn’t mean that other parts are unconstitutional. Here are three distinct parts to focus on:

• The statute created by Section 2(c) says presidents may only introduce forces into hostilities after Congress has declared war or authorized force by statute, or if the United States has been attacked. No president has respected that narrow list of when he may unilaterally dispatch forces into combat, so it is fair to say that every president has considered this purported rule to be an unconstitutional constraint on commander-in-chief powers.
• The statute created by Section 5(c) says Congress can direct a president to withdraw troops from any specific combat mission even before the 60-day clock has run out by passing a concurrent resolution – that is, something a president would have no opportunity to veto. Since the Supreme Court’s landmark 1983 decision INS v. Chadha, it has been clear that this provision is unconstitutional.
• But even if those provisions are unconstitutional, that does not mean that the 60-day clock provision – the statute created Section 5(b) – is invalid. This is the provision which automatically requires presidents to terminate a combat operation after 60 days if Congress has not acted to authorize it. Nixon said it was unconstitutional in his veto message, but Congress overrode his veto and enacted the resolution into law anyway.

So what has the post-Nixon executive branch said about the 60-day clock provision?

THE 1980 OLC MEMO

The starting point is that in 1980, the Justice Department’s Office of Legal Counsel concluded that the clock is constitutional:

We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. Finally, Congress can regulate the President’s exercise of his inherent powers by imposing limits by statute.

O.L.C.’s legal analysis is binding on the executive branch unless its interpretations are overruled by the attorney general or the president.  No subsequent administration has revoked that memo, so in that very important sense the view that the 60-day clock is constitutional has remained consistent executive branch law throughout the Reagan, Bush-Quayle, Clinton, Bush-Cheney, and Obama administrations. And throughout that time, no president of either party has declared that he was violating the 60-day clock as an exercise of any constitutional authority to override it.

So what is Griffin’s objection?

Griffin overlays an observation about partisan disagreement to this pattern. He  claims that the executive branch under subsequent Republican presidents – though not Democratic ones – essentially ignored this Carter-era O.L.C. memo and instead took the position that the 60-day clock was unconstitutional. His larger point is that “the question regarding adherence to the sixty day limit can arise meaningfully only when a Democrat occupies the White House” because no Republican president even cares about it.

In support of this objection, he points to three specific moments that indeed complicate this pattern: one in the Reagan administration, one in the Bush-Quayle administration, and one in the Bush-Cheney administration. These three moments, he contends, show that Republican presidents have consistently taken the position since 1983 that the 60-day clock is unconstitutional.

Just as Griffin thinks I oversimplified a bit by failing to note that GOP administration legal teams have been hostile to the 60-day-clock, I think he overstates a bit by portraying this hostility as rising to the level of GOP presidents actually declaring or taking the position that it is unconstitutional. Let’s look at each in turn.

THE 1983 REAGAN SIGNING STATEMENT

In 1982, Reagan dispatched troops to Lebanon to serve as peacekeepers. The following year, things were heating up, and leading lawmakers thought the troops were in sufficient danger that the mission counted as the sort of hostilities that needed authorization. After negotiation with the White House, Congress passed the “Multinational Force in Lebanon Resolution,” which Reagan signed on Oct. 12, 1983. In this bill, Congress declared that the 60-day clock had started ticking on Aug. 29, when two Marines were killed and 14 others injured during fierce fighting in Beirut, while authorizing the mission to continue for 18 months, by which time the United States was to have pulled its forces out.

The Reaganites did not like this intrusion by lawmakers into his foreign policy. (But they were very happy to have been forced into this a few weeks later when a suicide bomber killed 241 servicemen in Lebanon; when congressional critics began blaming Reagan for sending them there, administration defenders like Rep. Dick Cheney could point out that Congress now shared political responsibility for their presence.) When Reagan signed the resolution, he issued a signing statement making reservations about some of Congress’s expressions about WPR issues that he deemed “debatable.”

Reagan couched his objections partly in statutory interpretation terms, saying he did “not necessarily join in or agree with” Congress’s statement that the 60-day clock had been triggered on Aug. 29 because “I would note that the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result.” He also made policy objections to existence of the 60-day clock, explaining why he thought an “arbitrary and inflexible” 60-day deadline was an “unwise” limitation on American foreign policy.

But, importantly, Reagan also suggested that the 60-day clock might be unconstitutional, by making clear that his signature on the bill did not amount to any acquiescence to Congress’s view of the law and Constitution:

I believe it is, therefore, important for me to state, in signing this resolution, that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President’s constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the President’s constitutional authority to deploy United States Armed Forces.

These two sentences, tossed off in a signing statement and lacking any supporting legal analysis, are the most extensive negative analysis the executive branch has issued in public regarding the constitutionality of the 60-day clock.

Importantly, this comment falls short of an actual affirmative proclamation by Reagan that the clock is unconstitutional. And Reagan did not actually act contrary to the provision, establishing an historical precedent. Instead, in this very bill, he secured authorization from Congress within the 60-day period as Congress saw it, bringing his mission into compliance with the clock. Interestingly, Reagan’s Office of Legal Counsel was working on an authoritative memo analyzing another aspect of WPR (whether deploying CIA paramilitary forces counted) that it completed that same month, so it had an excellent opportunity to reconsider and revoke the 1980 opinion at that very moment and did not do so.

THE 1990 BUSH WHITE HOUSE COUNSEL MEMO

Griffin also points to an internal memo to George H. W. Bush from his White House counsel,  C. Boyden Gray,  on Aug. 7, 1990. It analyzed various legal issues raised by the possibility of acting unilaterally to push Saddam Hussein out of Kuwait, versus getting a declaration of war from Congress. Gray’s letter touches on the 60-day clock in one paragraph, and dismisses it as unconstitutional in an aside:

A declaration of war would have limited effect under existing statutes. It would fully satisfy the requirements of the War Powers Resolution, thereby eliminating the need to report certain force deployments to Congress and providing congressional authorization to continue deployments into hostile situations for more than 60 days. A joint resolution of Congress would also provide authorization to continue such deployments, however, though the requirement that certain deployments be reported to Congress would remain in effect. In the absence of either a declaration of war or a joint resolution, we would be subject to both the War Powers Resolution’s reporting requirement and its requirement – which we regard as unconstitutional – to terminate deployments into hostile situations after 60 days.

Who’s “we?” What’s the theory? What about O.L.C.’s contrary analysis, still on the books from 1980? Gray’s memo doesn’t say.

In any case, Bush never proclaimed this view publicly, and he ultimately sought and obtained congressional authorization for the Gulf War early in 1991. So the public only found out that Gray had written this many years later.

Back during the lead-up to the Gulf War, as Griffin notes in his book’s footnotes, Gray also made an interesting comment in a December 1990 memo to Bush’s chief of staff about the realpolitik problems raised by actually challenging the provision. Gray first noted that the administration had couched its WPR notifications to Congress about the troop build-up in Saudi Arabia in a way to avoid triggering the 60-day clock, because once it was triggered, the executive branch “would be required” to terminate the mission in two months. Then, he added:

We believe that the War Powers Resolution is unconstitutional insofar as it purports to allow Congress to compel the withdrawal of U.S. forces through inaction, but no President has wanted to jeopardize congressional support for his actions by defying the Resolution. It often falls to Executive branch lawyers to develop a legal theory permitting the President to avoid triggering the clock.

I think this observation by Gray dovetails with my view that while GOP administration legal teams did not like the 60-day-clock, no GOP president has actually taken the position that it was unconstitutional and their administrations have always instead couched what they were doing as acting consistently with it. Hence Obama’s dilemma in contemplating becoming the first president to actually proclaim it unconstitutional and openly defy it on claimed constitutional grounds.

THE 2002 YOO TESTIMONY

In April 2002, the Senate Judiciary Committee held a subcommittee hearing on the topic of “Applying the War Powers Resolution to the War on Terrorism.” Since Congress had enacted an authorization for the use of military force (AUMF) against the perpetrators of the 9/11 attacks, this was a largely theoretical topic. John Yoo, then a deputy assistant attorney general in the Office of Legal Counsel (and the author of many then-secret memos asserting vast executive powers to act in defiance of statutory constraints in a national-security matter) testified at the hearing. Yoo said:

This administration follows the course of administrations before us, both Democratic and Republican, in the view that the President’s power to engage U.S. armed forces in military hostilities is not limited by the War Powers Resolution. The sources of presidential power can be found in the Constitution itself. And I shall discuss both the War Powers Resolution and the Constitution in today’s hearing.

However, pretty much all of Yoo’s testimony that follows is about Section 2 of the WPR, and whether the president needed congressional authorization to initiate hostilities against Al Qaeda. He never specifically addressed Section 5(b), the 60-day clock. That said, I have no doubt that Yoo believes that the clock is unconstitutional, too, and that if asked, he would have produced an opinion saying so. That might have become the occasion for the executive branch to withdraw the 1980 O.L.C. opinion and substitute one saying the opposite. But because of the AUMF, there was no need to ask him to destroy it.

So what do I think?

I stick to my statement that despite discombobulated claims that every president since Nixon has declared the WPR’s 60-day clock to be unconstitutional, in fact none has. But I also agree with Griffin to a significant extent:  it’s clear that behind the scenes, the legal advisers to Republican administrations, starting with Reagan, believed it was probably unconstitutional, even if they never grappled with the question seriously enough to commission a new Office of Legal Counsel memo or to revoke the existing one. This is explained by historical contingency: there was never a need, in practice, to deal with it.

Nevertheless, despite the strong hint in Reagan’s signing statement, the hostility on display in Gray’s memo to Bush 41, and the implications in Yoo’s testimony, none of those three presidents actually proclaimed the clock to be unconstitutional, nor acted in clear defiance of it. Thus, while some president may yet simply declare the 60-day clock provision to be an unconstitutional constraint on his or her commander-in-chief powers and act in clear disregard of it, there is currently no precedent for such an event.

In sum, my dispute with Griffin, to the extent it is a dispute, is about what counts as taking the position or declaring that the 60-day-clock is unconstitutional, versus merely muttering under one’s breath about it.

[12/17/2015 – I have revised bits of this post for clarity-CS.]

[UPDATE 9/17/2022 – The Knight First Amendment Institute at Columbia University has liberated a series of additional historic O.L.C. memos about war powers using the Freedom of Information Act. Here is a New York Times article about them. When I have some time I will make a single master file of curated WPR documents but for now here are the new ones, which also include some post-WW II and other war powers stuff unrelated to the War Powers Resolution.]

An important moment in Power Wars is the May 2014 prisoner exchange deal in which the United States sent five high-level Taliban detainees to live under monitoring and travel restrictions in Qatar to secure the release of Sgt. Bowe Bergdahl, America’s only prisoner of war in Afghanistan, who had been held in horrific conditions by Islamist insurgents for five years. I cover it in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl,” page 519-523.

Today, coincidentally, separate tranches of new information have become available each half of the deal from this complex episode.

This morning, the podcast “Serial,” by the “This American Life” people, posted the first episode of their second season, which turns out to be about the Bergdahl case. It is centered around 25 hours of interviews between Bergdahl and Mark Boal, who is best known as the screenwriter of “Zero Dark Thirty” and “The Hurt Locker.” In this first episode, Bergdahl describes a bit of what it was like to be held in Taliban custody – including a grim bit about how his mind was breaking down during a period when he was held in continual complete darkness – and talks about his motivations in walking away from his base without permission: what he was thinking when he decided to do it (he says he was trying to draw attention to problems in his unit, a story that the investigating general concluded was truthful but delusional), and what he was thinking as he got away from the base and realized he was in over his head, and how he ended up getting captured. I strongly recommend listening to it – fascinating stuff.

Separately, the Republican staff on the Housed Armed Services Committee have released a roughly 100-page report detailing their oversight investigation into the circumstances of the Taliban 5 transfer. I obtained an advance copy and wrote an article describing it – and Democrats’ rebuttal – that the New York Times published last night. (The report cites Power Wars several times.)

The report is valuable for two reasons. First, it provides a rebuttal to the administration’s arguments that the 30-day notice provision of the transfer restrictions was unconstitutional, at least as applied. The executive branch spelled out that argument in a back-and-forth with the GAO last year (I earlier posted those documents on this blog) and the GAO did not engage with it, so it has stood uncontested in any formal way. Now the public can view an articulation of the arguments from both points of view.

Second, it discloses many new historical details about what the administration was doing  during in the six months leading up to the swap, as then-DOD general counsel Stephen Preston picked up on what his predecessor, Jeh Johnson, had explored with the Qataris and eventually pushed the deal through to completion. At the time, the administration was pretending, both to reporters and to Congress, that nothing significant had changed about the prospect of such a trade, which had floated in on-again, off-again talks for several years. It quotes from many internal emails and closed-door testimony about how the talks progressed and unusual bureaucratic maneuvers in preparing for the transfer, which adds a lot to the publicly available history of how this episode unfolded. Here are some excerpts that jumped out at me:

• Preston, who was confirmed as DOD general counsel in October 2013, went to Qatar in December 2013 with then-Secretary Chuck Hagel and, among other things, met with the Qatari attorney general where they discussed reviving the lapsed idea of sending the Taliban Five to Qatar in exchange for Bergdahl, and what security conditions Qatar would impose. Preston wrote in an email back to colleagues: “Our meeting with the AG earlier today went reasonably well. . . . there were no disagreements, and we achieved our immediate objectives: signaling to the third party [the Taliban] our interest in pursuing this matter and confirming the host government’s [Qatar’s] willingness to commit to the previously negotiated terms and assurances, subject to further discussions with the third party.”
• On the US’s behalf, the Qataris asked the Taliban for a “proof of life video” of Bergdahl, which arrives in January.
• “Between January 10 and February 11, 20114, Cabinet secretaries from involved agencies meet at least once in a “Principals Committee” and the second- in-command for each gather one or more times in interagency “Deputies Committee” to discuss the MOU and swap.”
• The press was reporting rumors that a Bergdahl-Taliban swap was in the air again. The White House demurred, stating (accurately, but misleadingly) that there were no “direct” talks with the Taliban. Similarly, when congressional staff reach out to the Pentagon, they are left with the misimpression that nothing new of significance was happening.
• The US was talking to the Qataris, and the Qataris were talking to the Taliban, but on Feb. 23, the Taliban told the Qataris they weren’t interested for murky reasons.
• By April 10, 2014, Preston was back in Doha to try again. Sticking points included whether the security arrangements (surveillance of their phone calls, a ban on letting the Taliban Five travel abroad or engage in raising funds for the Taliban or encouraging militant activity) would last only a year, and whether the Qataris could extend that time when the year was up. (This is what has happened.)
• When Preston thought they might be on the verge of a deal on May 2, 2014, he wrote this in an email to colleagues back in Washington, referring to the Office of Secretary of Defense (OSD), the secretary’s staff (the secretary of defense “front office” or “SD/FO”), the relevant congressional committees (“overseers”), the Afghans (“As”), and the forthcoming prisoner exchange (the “next phase”): “There is great concern all around about possible leaks—not from OSD, I might add—as this phase of the discussion ends and we seek to proceed expeditiously with the next phase. (This concern is exacerbated by the prospect of notification to our overseers and/or the As.) There is some thought being given to necking down the group in on development going forward. Please act accordingly. I have informed SD/FO.”
• “The Qataris, too, emphasized secrecy. On May 5, the State Department forwarded to Mr.
  Preston the text of a message received from a Qatari interlocutor: ‘As we agreed, it is very important to keep this agreement secret and on a need to know base [sic] only. To be more clear: for the sake of the success of the deal, this secrecy should continue up to the time of the actual transfer. At that time we can agree on the proper way to deal with the media.'”
• On May 6, 2014, Preston sought guidance from the Justice Department’s Office of Legal Counsel on “whether proceeding with the transfer of detainees without 30-days’ notice to Congress might be lawful given the extraordinary circumstances at issue here—in which providing 30-days’ notice would put into peril the life of a service member in captivity.” Shortly thereafter, DOJ said the president’s constitutional authority would permit the transfer to proceed without the notice.
• On May 11, the Qataris relayed a request from the Taliban to add a sixth detainee to the deal, which the Obama administration rebuffed. (The original talks in 2011 had contemplated six, but one of them had since died of a heart attack at Gitmo.)
• “On May 12, the Qatari attorney general and three other Qatari officials attended the MOU [memorandum of understanding about surveillance and travel restrictions for the Taliban Five] signing ceremony. It was held in the ornate Indian Treaty Room in the Eisenhower Executive Office Building adjacent to the White House. Mr. Preston (who affixed his name on behalf of the Department of Defense), Mr. Dumont, Navy Admiral James A. “Sandy” Winnefeld, Jr. (the Vice Chairman of the Joint Chiefs of Staff), two National Security Council staffers, and a State
  Department official attended.86 Afterwards, the entire party dined at the nearby Metropolitan Club.”
• On May 14 there was another deputies committee meeting about the matter.
• “In this period [around the time of the deputies committee meeting], the American negotiators also learned from the Qataris their impression that Sgt. Bergdahl’s health was declining, that the Taliban’s interest in keeping Sgt. Bergdahl alive was diminishing, or the captors’ enthusiasm for a swap was waning. “Time is not on your side,” Mr. Dumont said the Qataris had reported to the U.S. Later, Mr. Dumont said the Qatari attorney general told him, “If this [the pending exchange] leaks out, we cannot guarantee what will happen to Sergeant Bergdahl. . . if this gets out that you’re trying to do this transfer [then] . . . the wheels come off.”
• On May 27, Preston wrote to his office from Qatar, “As this matter moves to the next phase, I want to stress the importance of maintaining strict secrecy. Premature exposure could have catastrophic consequences,” he wrote. “Please be careful about what you say and to whom.”
• Hours later on May 27, Preston wrote back that the deal was done: “We have a deal. Agreement on structure of exchange, details of sequence of steps—open issues resolved—literally shook on it. Execution is already underway. Current plan is to consummate the transaction this week.”
• Also on “May 27, Mr. Lumpkin spoke with General John F. Kelly, the commander of Southern Command, and directed him to prepare the Taliban Five to leave GTMO. General Kelly then telephoned Rear Admiral Richard Butler, who led JTF-GTMO. Two U.S. Air Force C-17s arrived at GTMO before the day was out. Thus started a complex series of choreographed events over the next four days, in which personnel at GTMO, Mr. Dumont in Qatar, and others elsewhere juggled many logistical issues. They worked to dispatch the Taliban Five to Qatar pursuant to the agreed upon arrangements and do so in a way which kept it from being publicly known. …The transfer process included Qatari representatives coming to GTMO to escort the detainees to Qatar. According to the GTMO commander, on May 29, the Qataris presented the Taliban Five with a statement which outlined their transfer terms.”
• “The Taliban Five were not to depart, however, until Sergeant Bowe Bergdahl had been returned to U.S. control. Originally, this was anticipated to occur shortly after the Qataris arrived at GTMO and had met with the detainees. However, as Michael Dumont (Deputy Assistant Secretary of Defense for Afghanistan, Pakistan and Central Asia) explained to the committee, “[i]t took the Taliban much longer to get Sgt. Bergdahl to us” than originally expected. Consequently, this delayed the departure of the Taliban Five. Eventually, after staging near the GTMO runway for about eight hours, it became clear that the transfer would not occur by the end of May 29. Accordingly, the Qatari delegation was provided with a room in the military hotel adjacent to the GTMO runway. The Taliban Five spent the night in a secure facility at GTMO normally used by the Department of Homeland Security in connection with regional immigration enforcement activities. The following day, the operation to recover Sgt. Bergdahl continued to drag out, further stalling the transfer.
  This additional delay meant the Qatari delegation and the Taliban Five were accommodated for a second night in the same way. … The call for mission “GO” came Saturday morning, May 31, 2014. The Taliban Five were bused from their cells to the waiting aircraft.  Less than 3 hours after Sgt. Bergdahl was released into U.S. custody, the detainees were escorted onto the aircraft and flown to Qatar, along with the Qatari escorts.”
• The chairman of the House Armed Services Committee at the time, Rep. Howard “Buck” McKeon, was told by the Pentagon that Bergdahl had been recovered and the Taliban Five were about to be flown out of Gitmo shortly before the plan took off.
• Detainee policy officials who work on normal transfers of lower-level detainees who are recommended for release, like Paul Lewis, who became the Department of Defense’s Special Envoy for Guantanamo Detention Closure in October 2013, had little involvement. The undersecretary of defense for intelligence, Michael Vickers, was not told what was going on: “Indeed, in the months leading up to the transfer, Mr. Vickers was not aware of or invited to any interagency meetings on the subject. ‘I didn’t participate in any [meetings] and nobody told me about them,’ he reported to the Committee. Mr. Vickers found out about the transfer the day before it occurred. He did not see the Memorandum of Understanding until after the transfer had taken place. Mr. Vickers said he was surprised he had been excluded from these matters because he said he was ‘generally’ apprised of ‘most policy matters’ and ‘anything operational’ in the Department.”

https://storify.com/csavage7/tim-edgar-s-power-wars-in-100-tweets

Today, Irek Hamidullin, a Russian army defector who joined the Taliban and was captured after a (spectacularly unsuccessful) assault on American and Afghan forces in Afghanistan in November 2009, was sentenced to life in prison after being convicted at trial before a civilian court last August. I report the very interesting background to Hamidullin case on pages 533-534 of Power Wars.

Hamidullin was captured shortly after the newly promoted Brigadier General Mark Martins arrived in Afghanistan and took over as acting head of detention operations there following a stint (as a colonel) as the co-leader of Obama’s 2009 executive order task force for detention policy. On the task force, Martins had been a prime mover in the push to reform and keep, rather than scrap, military commissions, and I separately recount a previously unreported behind the scenes battle he had with David Barron, then the acting head of OLC, on tribunals issues. But Martins was also steeped in the broader lessons of the task force, a chief takeaway of which was that it was smart to be thinking about off-ramps — stable, long-term disposition options — for terrorism captives from the beginning.

From Afghanistan, Martins began lobbying the Department of Justice and U.S. Central Command in Tampa to bring FBI agents to Afghanistan to investigate Hamidullin’s case while the evidence was still fresh, such as by interviewing the soldiers who had captured him, while they were still deployed in the theater. Since Hamidullin could likely not be sent to Russia (lest it abuse him), Martins’ idea was to gather evidence in a way that would meet admissibility standards in civilian court.

Especially in the politically toxic aftermath of the Christmas 2009 underwear bombing, the idea of reading Miranda rights to a terrorism suspect captured in a war zone was a tough sell. But the revamped military commissions system was not yet up and operating, and eventually Martins got what he asked for.

Nearly four years later, in the fall of 2013, the United States was preparing to “end” its military mission in Afghanistan. There turned out to be less to this than advertised, obviously, but the U.S. would get out of the detention business at Parwan, the prison at Bagram Airbase, by the end of 2014. Hamidullin was one of the last detainees in U.S. custody. By then, Martins was back in the United States and serving as the chief prosecutor in the military commissions system.

Now that the tribunals system was operating again, Martins wanted to prosecute Hamidullin in it — if not at Guantanamo, to which Obama had banned bringing any new detainees, then at the military base in Charleston, South Carolina. But holding a tribunal on domestic soil would mean entrenching military commissions as a tool for future captures, and Obama’s national security team had grown skeptical of the tribunals system, which was not working very well in getting to trial in the 9/11 and Cole bombing cases.

Martins lost the policy debate: in the fall of 2014, the Justice Department obtained an indictment of Hamidullin and he was flown to the Eastern District of Virginia for trial before a civilian court. He was convicted earlier this year, and now will serve the rest of his life in prison.

So the irony is that while Martins lost the policy fight to prosecute Hamidullin in his military commissions system, he nevertheless deserves significant credit for this outcome because it was his own earlier intervention to collect civilian court-worthy evidence that led to it.

In today’s article about Obama’s new Gitmo closure endgame of trying to drive down the number of detainees who would be brought to a replacement wartime prison on domestic soil, I mentioned that some lawyers for detainees (including Abu Zubaydah) want to strike plea deals with the government – but, for several reasons, only in the Article III civilian court system, not the military commissions system.

Because Congress has banned bringing detainees into the United States, this raises the question of whether a federal judge would be willing to take a plea and impose a sentence by remote video link. This was too in-the-weeds for a newspaper article, but it is an interesting legal issue. Someone shared with me some preliminary research about why it is murky, which I summarize below.

It turns out that in 2002, the Federal Rules of Criminal Procedure were amended to explicitly permit doing initial appearance hearings (Rule 5f) and arraignments (Rule 10c) by remote video conference, while the rules about plea hearings (Rule 11) and sentencing hearings (Rule 32) are silent on this issue. However, a rule on the defendant’s presence (Rule 43) states that unless Rule 5, 10, or 43 provide otherwise, a defendant “must be present” at stages of trial, including “the plea” and “sentencing.” Basically, the question is whether that is a right, which a defendant may choose to waive, or a requirement, which he cannot waive.

On occasion, prosecutors strike a precooked deal with someone who hasn’t been arrested yet, and who does the whole shebang – presentment to guilty plea – in one hearing, as would be the case with a Gitmo detainee deal. And there are a few precedents for pleas being taken by remote video link, without being overturned by an appeals court. For example:

• U.S. v. LIRIANO-BLANCO, 510 F.3d 168, 169 (2d Cir. 2007)
  • discussing, without objection, how the district court judge had taken the plea in a videoconference hearing while the judge was in Binghamton, New York, and the defendant, defense lawyer, and prosecutor were in Albany
• UNITED STATES v. HARRISON, 48 F.Supp.3d 381 (N.D.N.Y. 2014)
  • “On April 12, 2013, defendant entered into a written plea agreement with the Government, and on the same day appeared via video conference to enter a plea of guilty. Defendant waived his right to appear in person, and was sworn prior to entering his plea.”
• UNITED STATES v. MELGOZA, 248 F. Supp. 2d 691 (S.D. Ohio 2003)
  • Rejecting two defendants’ request to plead guilty by remote videoconference as a matter of convenience in light of Rule 43, but  also noting that the same court, “on one occasion, permitted a Defendant to enter a plea of guilty, by video conference, upon his consent. In that situation, the Defendant’s physical condition, as confirmed by his treating physicians, was such that he not only could not travel to Ohio from his home in Atlanta, but that he would never be able to do so.

 

UPDATE: 1/29/2016

I missed an important thing: in 2011, Rule 43 was amended to say a defendant need not be present for a “misdemeanor offense” in which the “offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s absence.”

The existence of this explicit exception for certain misdemeanor cases arguably implies that the rule is no exceptions for felony cases. (If so, this would be a true “exception that proves the rule,” that frequently incorrectly invoked concept.)

Here’s what the committee notes said about that amendment:

Committee Notes on Rules—2011 Amendment

Subdivision (b). This rule currently allows proceedings in a misdemeanor case to be conducted in the defendant’s absence with the defendant’s written consent and the court’s permission. The amendment allows participation through video teleconference as an alternative to appearing in person or not appearing. Participation by video teleconference is permitted only when the defendant has consented in writing and received the court’s permission.

The Committee reiterates the concerns expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence. These concerns are particularly heightened when a defendant is not present for the determination of guilt and sentencing. However, the Committee concluded that the use of video teleconferencing may be valuable in circumstances where the defendant would otherwise be unable to attend and the rule now authorizes proceedings in absentia.

Here is my latest Gitmo story, surfacing the latest behind-the-scenes stuff on Obama’s fraught push to close Gitmo before he leaves office.

Among the takeaways:

• Although Obama has twice said he wants the detainee population (currently 107) down to double digits by around the new year, there are currently no SecDef notices at Congress, so we’re at least 31 days away from any transfers
• A country that had agreed to take two detainees is now threatening to walk away if there are any further delays
• The fabled “plan” to close Gitmo that is being prepared for Congress (where many GOP critics of Obama falsely say he has had no plan, even though he’s had a plan since 2009 and the basics will not be any different from that one – the problem is people don’t like his plan, not that he doesn’t have one) is going to have much higher per-capita detainee costs than what has been suggested by the figures often cited by closure proponents – that it costs >$3 million per year to house a detainee at Gitmo, versus <$80,000 per year to house a terrorist in the Florence ADX “Supermax.” The reason is that these two figures are based on dividing the number of prisoners at each into a total cost that is not an apples-to-apples comparison. In particular, more than a quarter of Gitmo’s $400 million budget is the cost of the military commissions system, while the Bureau of Prison’s numbers for the Supermax does not include the cost of the civilian courts system.
• Carter presented a draft plan to Obama in the Oval at 5 p.m. on Nov. 10, leading to discussion of ways to make the costs lower
• The endgame strategy now is to drive down the number of detainees who would need to be brought in the United States, from the current 59 to a goal of less than half of that
• One way to drive down the number of detainees is to speed up the work of the Periodic Review Board, which has been moving slowly in reviewing forever detainees but is converting a high number of those it has examined into transferrable detainees
  • Of the 18 forever detainees the board has reviewed since starting work in the fall of 2013, it decided 15 should now be transferred, if security conditions could be met in the receiving country – a conversion rate of 83%
  • 46 forever detainees have not yet been processed by the board
• Another way to chip away at the numbers of future indefinite detainees is to send some to foreign courts for prosecution, like Hambali (2002 Bali bombings)
• A third way is to strike plea deals with others, and several want to do so – but in Article III civilian court, not commissions.
  • Certain charges for vague terrorism-related offenses, like conspiracy to provide material support for terrorism, are only available in civilian court, making more detainees prosecutable
  • Civilian court rules permit time already in custody to count toward a sentence
  • A convicted detainee could be extradited to his home country to serve out his sentence, or brought to a regular federal prison as a regular inmate, not the replacement wartime prison
  • A plea deal would avert the need for a trial in a federal courthouse on US soil, avoiding the security fears that derailed the proposed civilian trial for KSM and the other accused 9/11 conspirators
  • Certain things are tricky about this, like whether a judge could take a plea and impose a sentence by remote video link, with the detainee still in Gitmo

Today, Ryan Reilly of the Huffington Post released most of Hillary Clinton’s memo to Obama at the end of her tenure as secretary state about how to revive the stalled effort to close Guantanamo. Daniel Klaidman first reported the existence of this memo in a 2013 story in the old Newsweek-Daily Beast. The cover memo makes clear that the memo was drafted by Harold Koh, then the top lawyer at the State Department, Michael Posner, the department’s top human rights official, and Dan Fried, the envoy charged with negotiating Gitmo transfer deals. They recommended that Clinton sign it, and she did.

I wrote about this memo  in Power Wars on page 494, in which I also reported that Clinton said similar things to Obama in person. But the White House essentially blew her off. The gap between the White House’s stated policy and its actual bureaucratic efforts (or lack thereof) to close Gitmo in this era upset Clinton, and she delivered a parting shot to the White House in response: she rescued Fried, who was negotiating deals only to have the Pentagon, then run by Leon Panetta, refuse to approve them, from a fruitless job.

Not only did she reassign Fried to new duties, but she closed his office down rather than replacing him – a clear signal that the closure effort was dead, even if the White House insisted otherwise. And she did this without telling the White House what she was doing. They learned about the closure of Fried’s Gitmo office by reading an article I wrote about it on Jan. 28, 2013, when I found out. In the land of executive branch hierarchy and bureaucracy, that was an unmistakable f-you.

Soon afterward, Fried ran into Clinton in the hallway. This was just before she stepped down on Feb. 1.

Thank you for springing me from Gitmo, even if no one else can leave, Fried told her.

I regret this so much, Clinton replied. I’m still steamed at how all this has unfolded.

***

If you think this is interesting, and haven’t yet started reading Power Wars, I invite you to do so.

 

As a follow up to my pre-Thanksgiving blog post discussing some of the revelations in Power Wars about the invention and significance of transit authority for understanding surveillance, I thought I’d highlight a nugget that is buried in the endnotes. I found or figured out so much stuff in reporting out Power Wars that some had to be relegated to the back of the book. This is an example worth noting.

In 2007, a former Qwest executive, Joe Nacchio, who was being prosecuted for insider trading, alleged in court documents that the NSA had asked Qwest to do something illegal in February 2001, but he had refused. It wasn’t clear what this was about, and it led to a lot of confused and confusing reporting, including speculation that the Bush administration had been trying to start its surveillance program (the New York Times had by then exposed the content component of Stellarwind, and USA Today had written a slightly garbled article about what now know to be the bulk phone metadata component) even before 9/11 — despite publicly justifying its program as a response to the terrorist attacks. Here is representative coverage from the time in Wired, The Washington Post, and my future colleagues at The New York Times; citing these articles in his endnotes, James Bamford later recycled some of these glimpsed-through-a-glass-darkly claims in what I believe to be an errant paragraph in his otherwise excellent book The Shadow Factory. 

This reporting tended to project what we knew at the time about Stellarwind onto the vague words in Nacchio’s court filing. But the idea that Bush and the NSA were pushing this long before 9/11, indeed just a month after the change in administration, never really made any sense, and none of the post-Snowden revelations has corroborated that theory. The problem was that we did not have all the puzzle pieces to correctly identify what we were looking at. Now that we understand what transit authority is and its pre-9/11 history, a much simpler explanation presents itself, one that fits with, rather than contradicts, everything else we now know. Here is my endnote:

 

 

 

If you are interested in stuff like this, and haven’t yet picked up a copy of Power Wars, I encourage you to do so!

 

Although “Power Wars” is mostly about the Obama era, “Chapter 5: Stellarwind (Surveillance 1928-2009)” focuses on events years before he took office. In it, I piece together fragments of recently revealed information – from the Snowden leaks, the resulting wave of government declassifications, and FOIA lawsuits by myself and others – to form the first coherent public history of American surveillance policy and technology over the past decades. I fill in remaining gaps in that narrative with original reporting, and the below document is a key puzzle piece in understanding how the partnering relationship between the NSA and post-Ma Bell telecoms developed in the late 1980s, laying the groundwork for what happened after 9/11.

It involves the invention, late in the Reagan administration, of something called “transit authority.” This permits the NSA, on domestic soil and without a warrant, to collect foreign-to-foreign communications that are passing over the American network under the permissive rules of Executive Order 12333 surveillance – which permits bulk warrantless content and metadata collection – rather than the restrictive rules of the Foreign Intelligence Surveillance Act. Pieces of that story are discernable in this fascinating memo from the Bush-Quayle administration. The memo was written by Mary Lawton, who was then the top intelligence lawyer in the Justice Department, to Dan Levin, then an official in the Office of the Deputy Attorney General charged with overseeing national-security matters. (Lawton died in 1993.)

Crucial passages of this memo are obviously redacted; it was officially processed and cleared for release through the Freedom of Information Act several years ago. Notably, the original requester was David Kris, the former assistant attorney general for the Department of Justice’s National Security Division, when he was working on his excellent book, National Security Investigations and Prosecutions. That book, however, had to undergo pre-publication review by censors. Mine did not.

See Power Wars, see Chapter five, section four, “Transit Authority,” for a greater description and explanation of what is going on here — important parts of which are based on my interviews with officials familiar with that era that dovetail with what this document’s unredacted portions are hinting at. But I will explain briefly below.

 

The essence is that after the Church Committee, Congress enacted FISA to regulate wiretapping on domestic soil. But the statute was written in a very complex way designed to obscure from adversaries and the public alike what it did and did not do. In particulate, it left the NSA free to wiretap without warrants using submarines to tap cables on the international seabed or by pointing antennas at communications satellites handling international phone calls. Both of those techniques would collect both purely foreign communications and one-end-foreign, one-end-domestic ones. (The NSA separately created procedures barring the deliberate targeting of an American absent special permission, but this would still permit bulk collection without targeting anyone, or warrantless collection targeting a foreigner even when he was talking to an American.)

But this accommodation to the  intelligence community began to break down in the mid 1980s when copper coaxial cables and phone system satellites were replaced by a network using fiberoptic cables. For technical reasons, it is harder to tap a fiberoptic line from the middle, deep under the water. The NSA needed to do it from the cable landing stations where the cable emerged from the water and plugged into the network. That seemed to bring previously unregulated surveillance activities under FISA’s individual warrant requirement.

In 1987, the Reagan administration drafted legislation to alter FISA in light of this changing technological situation, so that it could again collect communications with at least one end on foreign soil without a FISA warrant (at least so long as it did not target an individual American.) But by 1990, the Bush-Quayle administration decided not to go forward with it. Part of the reason, as Lawton candidly acknowledged in this memo, was that the bill would have to be written in such a way as to keep obscure what it was doing, which would lead to public speculation that something sinister was going on. (There’s secret law, and then there is intentionally incomprehensible law.)

But the Reagan administration had, in 1988, invented something that partially mitigated its problem – for a growing amount of purely foreign-to-foreign traffic crossing the American network. The idea was that a careful parsing of FISA showed that the statute did not cover transiting foreign-to-foreign communications, even if collected from a wire on domestic soil, and that the Fourth Amendment did not cover foreigners abroad. Thus the president had inherent authority to collect, without a FISA warrant, a phone call from, say, someone in France to, say, someone in Iran, as it crossed a domestic network switch. The Reagan legal team produced a memo for the president to sign to the secretary of defense and the attorney general saying he understood that they were interpreting the law in this way and approved. Each subsequent president, including Obama in January 2012, has signed such a memo.

Based on that presidential authority, back in the spring of 1988, then-attorney general Edwin Meese and then-deputy defense secretary William Taft signed a new “Classified Annex to Department of Defense Procedures Under Executive Order 12333” that permitted this form of warrantless surveillance to commence on domestic soil under 12333 rules, not FISA rules. That document was partially declassified after the Snowden leaks and the uncensored parts include a reference to transiting communications.

DoD Procedures Classified Annex 1988 (Text)

The invention of transit authority led to partnerships between the NSA and telecommunications companies. There was no need to tell the phone companies when the NSA was eavesdropping on their satellites or unilaterally tapping their coaxial cables in international waters. But collecting transiting communications from fiberoptic lines meant getting into their facilities. The phone companies had to know and cooperate, permitting the installation of equipment on switches to filter communications and forward foreign-to-foreign transiting ones to the NSA’s processing systems. This was a different sort of relationship – voluntary cooperation. The insight is that FISA simply did not regulate that type of communication, so just as no warrant was required, the FISA Court also had no jurisdiction to issue orders compelling the telecoms to turn them over to the government, either.  

In the decade that followed this memo, pressure mounted on the other half of the issue identified in the 1980s – the NSA’s ability to collect communications with at least one end on domestic soil. This became particularly acute after the rise of American web-mail, like Yahoo Mail and Hotmail and then Gmail, in which purely foreign-to-foreign messages looked one-end-domestic because they were being sent to or retrieved from a server in California.

After 9/11, when the Bush administration wanted to begin conducting surveillance of one-end-domestic messages without a FISA warrant, the partnership relationships with the telecoms – and the pre-existing equipment capable of carrying out that collection – dating back to the arrival of transit authority became crucial. The road to Stellarwind began with the secret invention of transit authority.