Charlie Savage

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.”

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.

Read it here in the New York Times.

We are six days out from the publication of “Power Wars,” an investigative history of the Obama administration’s national-security legal policymaking. It goes behind the scenes to explore the space between these two Obama quotes in its epigraph:

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: [email protected]”) or in the e-mail body (“Hey when you get there, send a message to [email protected] 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.

 

 

 

 

 

Here is the relevant part of his veto message to Congress.

The U.S. Court of Appeals for the Second Circuit has issued what appears to be a significant ruling in the ongoing NYT/ACLU Freedom of Information Act lawsuit for legal memos related to targeted killings — but we can’t see it yet. The court has made certain redactions in its opinion, and the government now has 30 days to appeal whether additional parts should be withheld from public view.

This is the same case that previously dragged into the light the February 2010 and July 2010 Office of Legal Counsel memos about killing Anwar al-Awlaki, the U.S. citizen and radical Muslim cleric accused of helping orchestrate the Christmas 2009 underwear bombing attack by al-Qaeda in the Arabian Peninsula, and whom the U.S. killed in a drone strike in Yemen in September 2011. Litigation has continued over other legal memos about targeted killing operations more generally.

We’ll find out later this year what is going on.

UPDATE Oct. 23, 2015: A reader points out that, per the now-unsealed transcript of ex parte oral arguments in July, it may be that the dispute is over the release of (only) two and a half pages of a 2002 DOJ Office of Legal Counsel memo on targeted killings, although there was some sealed back-and-forth after that so maybe something more is involved.

 

It’s a team effort to bring national security issues to light. Here are some non-NYT colleagues I thank in Power Wars: