A Victory Against Secret Law: Appeals Court De-Censors Its Ruling in Doe v. Mattis (the U.S. citizen enemy combatant case)

Today, in a victory against secret law, the Court of Appeals for the District of Columbia has unsealed and re-issued a significant ruling it issued in May 2018 in the case of Doe v. Mattis, regarding an American citizen who was held without trial in American military custody for over a year as a suspected Islamic State member. This result is due to the vision and hard work of the Media Freedom and Information Access Clinic at Yale Law School, which had the idea and asked me to be the plaintiff. Congratulations to the clinic’s David Schulz, Charles Crain, Paulina Perlin, and Sarah Lamsifer.

The ruling in question was that the U.S. government could not forcibly transfer an American to another country over his objections without first proving that he was indeed an enemy combatant being legitimately detained under the laws of war, which he contested. The government considered it a secret which countries it was negotiating with to take the man, and so portions of the ruling that discussed those countries and legal issues raised by them were blacked out on pages 36, 37, and 44 in the majority opinion by Judge Sri Srinivasen, and pages 1, 4, 5, 8, 17-19, and 31-33 in the dissenting opinion by Judge Karen LeCraft Henderson, making them difficult to parse.

In fact those countries were Iraq, where he was being held at an American base, and Saudi Arabia, where he was a dual citizen despite having been born in the United States. The New York Times had already reported those facts — and eventually other ones that still remain officially secret, like that his real name is Abdulrahman Ahmad Alsheikh and that he was ultimately freed in Bahrain — based on sources. But making these passages in the ruling visible is an important accomplishment for making this legal precedent understandable, both for scholars to study and for potential litigants if a similar dispute arises again in the future.

“I think the most important takeaway is that the public now knows that the government was arguing that dual citizens possessed lesser Fifth Amendment rights against transfer than sole-U.S. citizens,” said Brett Max Kaufman, a lawyer for the American Civil Liberties Union, which represented Doe/Alsheikh. “That may have been implied by what was public before, but now those arguments are out in the open (and the specific holding can be relied upon in future cases).”

Kaufman added that while the identity of Saudi was something of an open secret, there was real value in official confirmation, as the complaint “compellingly argued” and as is evidenced by the revelation of the government’s specific legal theory.

I would also like to applaud the Justice Department for not trying to fight the unsealing, other than by making a small request that we did not object to: keeping the name of a State Department official who filed an affidavit blacked out.

Here is the order and unredacted ruling:

The NYT Is Surveying 2020 Presidential Primary Candidates About Their Views on Executive Power

On Friday, I emailed numerous presidential primary campaigns an invitation to participate in a New York Times survey project on executive power. Our intent is to publish the full answers of each participating candidate, alongside notations indicating which others were unwilling or unable to answer the questions. We gave the campaigns a one-month deadline of July 19. You can read the questionnaire below.

The idea is to ask would-be presidents to talk about their understanding of the scope and limits of the powers they would wield if elected – before voters decide whom to entrust with the presidency. One section also asks the candidates to reflect on how they would handle issues raised by what may turn out to be a reform era, in which Congress may pass bills seeking to curb executive power in response to Donald Trump’s serial violations of previous norms of presidential self-restraint, and the next president will have to decide whether to sign them into law even though that would mean constraining his or her own authority.

This is the fourth iteration of this project. It traces back to late 2007, when I was a Boston Globe reporter and had just written my first book, Takeover, about the Bush-Cheney administration’s efforts to expand executive power. Some of the most important controversies of that period had made clear that in the post-9/11 era, the constitutional views of a president and his or her legal team can be crucial – and yet nobody was asking the candidates about them in televised debates. After listening to me complain about that one too many times, my wife Luiza suggested I ask such questions myself, so I did so, leveraging the Globe’s window of outsized influence ahead of the New Hampshire primary. After moving to The New York Times, I repeated the project in late 2011 and in early 2016, each time updating the survey to cull some questions and add others addressing more recent disputes.

We got responses from nearly all the significant 2008 and 2012 primary candidates, including each of the eventual party nominees — then-Senators Barack Obama and John McCain (as well as then-Senators Joe Biden and Hillary Clinton), and then-Governor Mitt Romney and most of his 2012 GOP rivals. Four years ago, the results revealed a rare commonality between the two nominees, Hillary Clinton and Donald Trump: neither wanted to talk about what limits on their powers they would respect if elected. My hope is that the dynamics of the 2020 cycle will mean that serious primary candidates will see engaging with these types of questions as valuable and important to American democracy — and that voters will judge them accordingly.

Remembering Robert Pear

My colleague Robert Pear died last night following a stroke. I would like to share a few memories and anecdotes about what it was like to work near and with him for the past 11 years. /1

Robert Pear, Authoritative Times Reporter on Health Care, Dies at 69

Robert had a very unusual personality. Despite being invariably gentle and genial, he was extremely private and incapable of the sort of chit chat and sharing details about one’s life that human bonds are normally forged from. Nevertheless, he made connections in his own way. /2

When I first came to the NYT from the Boston Globe in May 2008, the first story I pitched – about a Bush White House directive to get regulations done by a certain deadline so they’d be harder for the next administration to overturn – turned out to overlap with Robert’s turf. /3

I was afraid I’d gotten off on the wrong foot, because I’d heard the bureau could be viciously turf-protective. Happily, that image was obsolete, as I started to realize when he turned out to be gracious and just happy someone else cared about a nerdy regs legal policy issue. /4

So we ended up joining forces: I shared my first NYT staff-story byline with Robert. /5

From September 2015, when we moved back into the bureau after a renovation, until last August, when I moved desks, my cubicle adjoined Robert’s and we shared a bookcase. I often got in earlier than most reporters due to my family’s schedule, but Robert almost always beat me. /6

And he was almost always there when I went home, even if I worked late. So for a long time my work days typically began with “Good morning Robert” and ended with “Good night Robert.” To which he would smile broadly and nod vigorously, and very quietly return the greeting. /7

But Robert was “sphinxlike,” as his obituary aptly says. Despite sitting next to him for years, I learned only from his obituary that in college he had been on the staff of Harvard Advocate, the undergraduate literary magazine, a quarter century before I did the same. /8

(This place is lousy with alumni of the Harvard Crimson or some equivalent student newspaper at other colleges, as you might expect, so having instead built our extracurricular lives around the lit mag is unusual. With anyone else we would have discussed and bonded over it.) /9

Robert also wasn’t one for nerding out in conversation about issues either. But every few weeks he would hand me a printout of an article he thought would interest me about Gitmo or executive power, or that cited my work. These gifts were his way of forging a connection. /10

Here's a story: Before the renovation, the DC bureau was filled with government reports & binders of official documents dating back years, lining the top of every filing cabinet – a vast govdocs library spilling everywhere. Robert had assembled it over the decades. /11

(We all had to clear out all our stuff for the renovation. I wonder what he did with all that stuff. Was his house overflowing with it? None of us ever saw the inside of it.) /12

Anyway, at first I didn’t understand this all belonged to Robert, and thought it was just a jumble of discarded bureau stuff. I found among it an original copy of the congressional Iran-Contra report which I was interested in because of Cheney’s minority views on exec power. /13

So not understanding that it wasn’t generally available stuff, I moved it to my own shelf and forgot about it. Years later, after the renovation when we were seated next to each other, it ended up on my shelves of the bookcase we shared. /14

At some point it occurred to me that this actually came from his collection, even though he never mentioned it. I was embarrassed and moved it to one of his shelves and apologized. He just smiled – seeming, if anything, just pleased that I had appreciated a doc he preserved. /15

Our reporting did not often overlap but sometimes I would ask him a question when his health care policy expertise overlapped with my exec power stuff e.g. Obamacare enforcement issues, and he would respond with a lengthy, lucid email — essentially an article just for me. /16

Last August, I moved across the bureau to join the cluster of other colleagues who also write regularly about national-security and law-enforcement beats, so we could talk about stuff we were working on together without having to walk across the building. /17

On my last day sitting in my old cubicle next to him, Robert surprised me with a “going away” present – a bundle of large and fancy cookies from Teaism, tied up with a bow – and told me I’d be missed. /18

Our last co-bylined story was in February, over a three-day weekend, when we teamed up to write about a group of states suing Trump over his border wall “emergency” plan. /19

While I didn’t see him as much after moving desks, I made it a point to say hello to him at our Monday morning all-bureau staff meetings. On the morning of his stroke, he walked up to me at that meeting and we greeted each other and stood quietly side by side. /20

After he was taken to the hospital, I was among many NYT reporters and editors who went over to the ICU in shifts to sit with him. He was not in good shape and it was not clear how aware he was, but he seemed to squeeze my hand gently when I greeted him.

Goodbye, Robert. /21

Originally tweeted by Charlie Savage (@charlie_savage) on May 8, 2019.

Privacy and Civil Liberties Oversight Board releases PPD-28 surveillance report in response to my FOIA

In response to a Freedom of Information Act request I submitted in the spring of 2017, the Privacy and Civil Liberties Oversight Board (PCLOB) has declassified and made public a partly redacted version of its December 2016 (ish) Top Secret report on the implementation of President Obama’s PPD-28, the presidential policy directive he issued in January 2014 to impose various surveillance reforms in response to the Snowden disclosures.

I reported on the insider history and substantive content of this directive in Power Wars’ Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 12 (Obama Under Pressure – Freedom Act II). Among other things, I parsed how many of the reforms, especially viz limits on handling foreigners’ data, codified existing practices.

The PCLOB report confirms that assessment. It is riddled with sentences about how the NSA, FBI, and CIA were largely already doing what Obama instructed them to do in such respects. One exception is that the CIA apparently applied its limits (like a requirement to delete raw data after five years) to mixed-source collections — those that contained information gathered both through electronic surveillance and human-source intelligence — even though the directive on its face applied only to signals intelligence, not humint. The two Republican PCLOB board members at the time, Rachel Brand and Elisebeth Collins, didn’t like that.

Here is the report:

“Vice” – A Cheney Biopic [updated 4/7/19]

Check out Christian Bale as Dick Cheney in this trailer for “Vice” that dropped today. This movie looks fantastic.

Chapters two and three of my first book, Takeover, were essentially an intellectual history of Cheney – why he had the views on executive power that he did, based on his previous life experiences – leading up to his ascent to power as the most influential vice president ever in Bush’s first term. You can read chapter two for free on this website, which gets you to the end of the Ford administration, when he was the youngest White House chief of staff in American history during the fallout from the Vietnam War, Watergate, and the Church Committee investigation.

 

UPDATE APRIL 7, 2019: I finally got around to watching this movie last night and had a mixed reaction. It was well acted and stylistically excellent in that Adam McKay way, but various inaccuracies bothered me.

It was probably inevitable that any movie would get the Unitary Executive Theory wrong (it used that phrase as a synecdoche for Bush-Cheney executive- power legal theories). But there were also omissions and distortions — particularly about Cheney’s intellectual history and beliefs (it portrays him as having none) — that I thought were unjustified by the sacrifices necessary to dramatize/simplify real-life events into a two-hour movie: they just made Cheney’s story less interesting than the reality had been, without any such silver-lining virtues.

(A friend had warned me I would have that reaction, which is why I didn’t rush to see it in the theater but waited for it to be available by streaming.)

After watching the movie, I was reading this article in Esquire,  “Vice Tries to Examine Dick Cheney’s Heart, but Conveniently Overlooks His Brain,” by Zeeshan Aleem, and thinking to myself yeah exactly, and then clicked on a link the writer was citing to make one such point, to discover …yep, I guess I would think that, wouldn’t I.

Issue to watch: What are the limits on “collective self-defense” of partner forces?

Senator Tim Kaine, Democrat of Virginia, has sent a letter to the Pentagon continuing a dialogue about the executive branch’s expansive view of “collective self defense.” The letter contains an excerpt from a letter the military had sent him earlier this year, which is not public, in which it says that the US military has legal authority to defend partner forces with airstrikes even when their adversary is not a congressionally authorized wartime enemy of the United States.

We basically knew that already from last year’s strikes against Assad forces in Syria who were menacing U.S.-backed rebels who are also fighting the Islamic State. But Kaine wants to know more about who decides who counts as a defensible partner force, and what limits there are. What he is getting at is the question of whether the executive branch is using this theory to essentially seize unilateral mutual-defense treaty making powers for itself.

It will be interesting to see what the Pentagon replies.

Kaine Presses Trump Adminis… by on Scribd

Senators Press Pompeo over Monitoring Ex-Gitmo Detainees, Fate of Two Libyans Deported by Senegal

As Secretary of State Mike Pompeo heads to the Senate later today to testify before the Foreign Relations Committee, a bipartisan group of lawmakers have sent him a sharp-toned letter about the Trump-era State Department’s seeming neglect of its responsibility to monitor former Guantanamo detainees — and expressing “profound concern” about two who disappeared after they were deported to Libya by Senegal this spring.

The senators — including Jack Reed and Dianne Feinstein, the top Democrats on the Armed Services and Judiciary committees, and James Risch and Marco Rubio, both Republicans on the Foreign Relations Committee — blasted the fact that the State Department (under Mr. Pompeo’s predecessor, Rex Tillerson) shuttered the Office of the Special Envoy for Guantanamo Closure without bothering to reassign its former job of monitoring former detainees and managing any problems that might arise. Since the Trump administration failed to give that responsibility to another high-level, centralized office or bureau, it devolved by default to the long list of things individual embassies track, i.e. became an after-thought:

We are concerned the State Department does not have someone tasked with, and responsible for, oversight of detainees who have been transferred out of Guantanamo. While we are familiar with the administration’s change in policy with regard to Guantanamo’s closure, we believe oversight of former Guantanamo detainees remains a lasting issue. We urge you to immediately assign responsibility for the oversight of former Guantanamo detainees to an existing Bureau, such as Counterterrorism and Countering Violent Extremism, and dedicate an individual within that office to manage this issue.

The letter came as unconfirmed reports have surfaced that Jihad Diyab, a Syrian former detainee who was resettled in Uruguay in 2014 and has slipped out of that country several times while trying to get back to the Middle East, may have used a false identity to go from South America to Morocco and then Turkey, which may have deported him to Syria. Diyab had gained prominence as a hard-core hunger striker at Guantanamo, where he was stranded for years after being recommended for transfer because of instability in his home country. Once resettled in Uruguay, however, he wanted to leave, and went to other countries several times only to be deported back. In the Obama era, the State Department’s Office of the Special Envoy for Guantanamo Closure had worked with authorities in Uruguay to manage his messy situation.

But the senators’ letter focused not on Diyab’s emerging case, but on another problem that arose last spring: the case of Salem Abdul Salem Ghereby and Awad Khalifa, two Libyan ex-detainees who were resettled in Senegal. In April, the Senegalese government deported them to Libya; the senators’ letter noted that it would have been unlawful for the United States to have repatriated them directly to Libya, a provision that Congress had enacted to “prevent these individuals from being transferred to unstable countries where they could be assimilated into terrorist organizations, tortured, or killed.”

After their transfer, they immediately disappeared, apparently into the hands of a militia that controls the airport at Tripoli, and have not been heard from  by their family or lawyers since. The senators criticized the government of Senegal for the deportation, which they portrayed as a violation of its international obligations. The letter also noted that the two men had been living peacefully in Dakar and one was engaged to a Senegalese woman, implying that greater diplomatic efforts by the United States might have persuaded the Senegalese government to let them stay. And it asked the State Department to work with Libyans to offer to resettle them in other countries or permit human rights groups visit them, although they also observed that “it is unclear whether they are still alive or in good health.”

Here is the letter to Pompeo:

Response to Robert Merry

A few weeks ago, the website of The American Conservative magazine published a lengthy article by its brief-tenured and outgoing editor, Robert W. Merry, carrying the sober and understated headline “The Nunes Memo and the Death of American Journalism.” Why was journalism dead? Because of me! More specifically, because when the famous memo prepared at the direction of House Intelligence Committee chairman Devin Nunes was released, I annotated it in a way that Merry did not like and saw as exemplifying a broader abandonment of good old fashioned journalistic values.

Merry’s critique inadvertently displayed cluelessness about several matters,  such as when he couldn’t understand the relevance (“out of the blue”) of flagging the memo’s tarring of Rod Rosenstein and its implications for the Mueller investigation, suggesting that Merry was completely unaware of the campaign then overtly underway to use the rollout of the memo to set Trump up to fire Rosenstein.

But Merry’s primary complaint was about annotations that flagged specific factual claims in the Nunes Memo that Democrats and law enforcement officials who had read the same underlying FISA materials contested as inaccurate or misleading. (Recall the context that Republicans had refused to put out the official Democratic rebuttal memo at the same time they made the Nunes Memo public.) Merry maintained that telling readers that certain parts were disputed was inappropriate, or as he put it, amounted to “ostentatiously answering serious allegations with counter-speculation by way of spreading confusion and thus undermining the allegations.”

His rationale was foggy. In some places, he seemed to recognize that I was reporting out a dispute that had two sides — drawing on confidential conversations with sources and citing a detailed statement issued that same day by Adam Schiff — but he maintained that what a real journalist would have done was just present the Nunes Memo’s allegations to readers as uncontested fact, like Kimberly Strassel of the Wall Street Journal opinion pages. (No, really!) In other places, he seemed not to recognize where the critique was coming from, bizarrely accusing me of merely speculating by myself, without any evidence, that certain claims in the Nunes Memo might be contestable.

Anyway, this was self-evidently a bad take from top to bottom, so I basically ignored it other than snarking on Twitter about one particularly dumb part.

But after the Democratic rebuttal memo belatedly came out and showed that our readers had received the full picture of the dispute when it still mattered, I made the mistake of paying a tiny bit more attention to him with a second tweet.

That unleashed a second confused screed. Neither of them appear to have had any impact — not even Russian bots are retweeting them, which is quite an accomplishment for pro-Nunes Memo pieces — but still, since these things live on forever in Google search, here is my brief rebuttal to it:

Lawmakers Warn Against Any Attempt to Jam 702 Surveillance Reauthorization Without a Real Debate

A bipartisan group of 10 senators today sent a letter to Senate Majority Leader Mitch McConnell today urging him not to try to attach an extension of the expiring warrantless surveillance program law, Section 702 of the FISA Amendments Act, to some other must-pass bill and trying to jam it through without debate. If there is no time for a debate now, they “ask that reauthorization be limited to a matter of months to allow time for proper debate on the issue in the early part of 2018.”

Separately, two days ago, 34 House members wrote a letter to House Speaker Paul Ryan to “demand” that 702 reauthorization be debated as a stand-alone bill rather than attached to the continuing resolution that Congress will have to take up before the end of the month to keep the government from shutting down.

“The House exists to debate the very sorts of issues raised by the FISA Amendments Act, and we insist on the opportunity to do so,” they wrote.

Tick tock. But! Important reminder: Notwithstanding the implication some rhetoric about the imminent sunset, the Trump administration believes collection can lawfully continue under the program through April, when the current court orders expire, even if Congress does let Section 702 lapse on December 31. It is therefore not preparing to shut down the program on New Year’s Day no matter what happens.

Here are the two letters: