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 YorkTimes 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.
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.
We have posted the full text of Chapter One: The Captive on the website as a free sample chapter. It reconstructs the day of the Christmas 2009 underwear bombing, and has new information about the famous decision to read the terrorist the Miranda warning.
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 myTimes 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.
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.” If you would like to do a detailed research on this, you can get this printed into a physical document. This topic has garnered much attention, and could prove to be an important aspect of study for the students or researchers who tend to focus on subjects such as this. A presentation on this might be a good idea for them as well. However, it all depends on their teacher or mentor who could give them specific instructions (in regards to file format and other academia related things), if at all this topic is chosen as a project topic. For instance, if the teacher asks them to convert their ppt to pdf on sodapdf or online tools of similar caliber, they might have to do it! Well, for now, let’s not diverge from the topic.
So, this was the first time the Obama administration violated 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 Guantanamo’s 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.
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.
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?
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.
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.”
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.