With The New York Times — and in one case, with my colleague Mark Mazzetti — I filed two new Freedom of Information Act cases this week. I thank the Times’ newsroom lawyer, David McCraw, and our annual First Amendment fellow, Jess Hui, for their representation in this litigation.
The case with Mark is asking the Defense Intelligence Agency for documents that would show whether it has been purchasing Domain Name System (DNS) logs or Internet traffic data from commercial brokers, and if so what it has been doing with them particularly in regards to searching for data associated with Americans.
Context: Last January I wrote about the DIA’s disclosure (in unclassified correspondence with the office of Senator Ron Wyden, Democrat of Oregon) that it has purchased smartphone app locational data from brokers and sometimes queried it, without a warrant, for information about an American’s past movements; that was interesting in part because in a landmark 2018 case called Carpenter, the Supreme Court held that the Constitution requires the government to obtain a warrant to compel phone companies to turn over location data about their customers, but the government has concluded that this ruling does not apply to locational data acquired through voluntary commercial transactions. Meanwhile, there is growing awareness of how DNS and/or netflow logs can be used to identify which websites or servers a particular user has accessed or which users are visiting a particular website or server, and debate about what the rules should be for government access to that kind of data. (This attention is mainly due to a legislative fight over whether to prevent the government from using Section 215 of the Patriot Act to gather Internet traffic logs, which Mr. Wyden has played a leading role in, but the power of DNS logs has also been in the news due to the Trump-era special counsel John Durham’s investigation into suspicions raised by a group of data scientists in 2016 about odd DNS data suggesting hidden communications between servers for the Trump Organization and a Kremlin-linked Russian bank.) In April, Wyden and other lawmakers introduced The First Amendment is Not For Sale Act to address commercial sales to the government of data pertaining to Americans’ communications. In May, Joseph Cox of Vice’s Motherboard reported on a letter from Wyden to the Pentagon revealing that the lawmaker had asked whether the Defense Intelligence Agency was buying commercially available DNS and netflow data, but that it had provided answers in a form he was not permitted to make public.
The other new FOIA case is seeking an updated (post 2015) set of the F.B.I.’s internal incident reports that it produces whenever an agent fires a weapon outside of a shooting range. The reports reconstruct a narrative account of what happened and assess whether the agent’s decision to pull the trigger complied with the F.B.I.’s policy, which allows deadly force only if agents fear that their lives or those of others are in danger. They can also reflect any disciplinary action or discussion of changes to training and procedures arising from the scrutiny.
Context: I’ve been periodically requesting and publishing these reports for years, and after having to fight a FOIA lawsuit for the first set, I was able to get updated tranches without litigation for some time. However the bureau has ignored my most recent request, so we are again suing to compel their disclosure in compliance with the information act. Notably, the first set of documents I obtained showed that the F.B.I. had deemed its agents faultless in at least 150 incidents in which they had shot someone dating back at last 20 years, including deeming a “good shoot” a case where it paid $1.3 million to an innocent man an agent shot in the jaw. After we began running stories on this pattern, the F.B.I.’s internal process seems to have gotten tougher, finding at least two shooting incidents to not have complied with its policy. But I’ve not obtained any such reports since 2016, so this lawsuit aims to make public what has happened since then.
I live-blogged on Twitter the Senate Judiciary Committee’s hearing on closing Guantanamo today. The biggest takeaway was what didn’t happen: the Biden administration didn’t send any government witness, in keeping with its low-key (and not particularly active) approach to its nominal policy goal of closing the prison.
Although the revitalized Periodic Review Board has been steadily adding names to the list of those recommended for transfer, Biden has not revived a position of State Department envoy to negotiate transfer arrangements. To date, the administration has transferred just one detainee. The current breakdown is 39 detainees remaining, of whom 12 have been charged or convicted before the tribunals system, 13 have been recommended for transfer with security assurances, and 14 are on the untriable/unreleasable list. (Check out the recently overhauled New York Times Gitmo Docket tracker.)
Anyway, there wasn’t enough concrete news at the hearing for a newspaper story, but here is the summary converted from a roughly 30-post Twitter thread:
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At Senate Judiciary Committee oversight hearing on Guantanamo, Senator Durbin expresses disappointment that the Biden White House and the Garland Justice Department haven’t responded to his letters on the topic & the Biden administration declined to send a witness to the hearing.
Senator Grassley, the top Rep, also flags that no one from DOJ/State/IC came to defend the Biden admin’s plan to close Gitmo and says he’s not sure there is any. Having a policy goal without a plan “invites disaster” he says, comparing it to the messy withdrawal from Afghanistan.
Senator Feinstein, recalling the CIA torture report she oversaw as former chair of SSCI, says the isolation of Guantanamo invites abuse and makes no sense to her to house prisoners there.
Brig. Gen. John Baker, the retiring chief defense counsel in the military commissions system, calls the tribunals a failure that need to be brought to an end as quickly as possible through negotiations. Too late to make them work, too many errors already baked in.
Colleen Kelly, whose brother Bill was killed on 9/11 and who cofounded a 9/11 families group, expresses frustration with failure of attempted military commissions prosecution. Asks for plea agreement that would provide answers & closure even tho it would mean no death sentences.
Cully Stimson, who was top DOD detainee policy/operations official in 2nd term of Bush admin, says early abuses at Guantanamo were wrong but treatment has been good since 2nd term of Bush admin. Suggests Obama/Dems lacked courage of convictions when failed to close it in 2009-10.
Maj. Gen. Michael Lehnert (ret.), the first Gitmo prison commander, says Americans have forgotten Gitmo but enemies still use it as recruiting tool. Says uncharged detainees should be transferred – saying risk of recidivism reduced bc they are aging and sickly – and /1
and the cases of the 12 charged ones should be brought to an end through negotiated plea deals, perhaps in civilian court via video conference hearings, even though it would mean taking death penalty off the table. Death just functions to make them martyrs anyway, he said. /2
Jamil Jaffer, a conservative national security lawyer, makes case for keeping Gitmo. War on terror not over. Releasing detainees risks they could become leaders in a foreign terrorist group and energize it. Bringing them to a prison on US soil risks giving them more legal rights.
Katya Jestin, the volunteer lawyer for Majid Khan, says commissions just exist to keep CIA torture in the shadows and continuing to litigate in the tribunals system is a road to nowhere. Says the detainees still uncharged, 20+ years after 9/11, should be transferred.
Under questioning from Durbin, Generals Baker and Lehnert reiterate their point of view status quo — keeping commissions going, keeping Gitmo open — is worse than the risk of changing course.
Under questioning from Durbin, Katya Jestin describes the military jury’s handwritten note urging clemency for her client Majid Khan and expressing disgust/shame over his torture by the US government. Story by @carolrosenberg
Under questioning from Grassley, Jamil Jaffer discusses the risk that released Guantanamo detainees might rejoin a terrorist group. Says “the terrorist threat today is worse specifically because we withdrew from Afghanistan”
Under questioning from Grassley, Stimson explains why many remaining detainees cannot be charged with a crime under civilian court standards. Jaffer warns the SCt might rule they have extra rights on domestic soil & there’s a low but not zero chance they could be ordered freed.
Feinstein doesn’t ask questions but says it costs taxpayers $13 million per year for each of the 39 remaining detainees to house them at Gitmo. Calls an isolated “‘criminal justice system’ in quotes” wrong and unAmerican and says she hopes the votes are finally there to end it.
Graham says it’s “nuts” to talk about releasing people when the Taliban control Afghanistan again. The war continues. Torture is wrong but indefinite law-of-war detention is lawful. “It’s absurd to criminalize a war.” Spars w/ Baker over whether detainees received fair process.
Graham says the need is to keep indefinite law of war detention somewhere. It doesn’t have to be at Gitmo. He doesn’t care where they are housed, it could be in Illinois. (That’s a reference to Obama’s plan to bring them to a prison in Thompson, Ill., which Congress blocked.)
Senator Whitehouse thanks Durbin for keeping pressure on the Department of Justice. Says the original sin of detainee problems was “inappropriate” post-9/11 DOJ Office of Legal Counsel memos by DOJ (Yoo-Bybee era) that the Bush DOJ itself disavowed once they became public.
Under questioning by Cornyn, Jaffer says despite the “precipitous withdrawal” from Afghanistan, the larger war on terror continues and therefore the legal ability to detain captured enemies indefinitely and without trial continues.
Stimson says that moving detainees to a different prison but continuing to hold them in indefinite detention is just changing Gitmo’s zip code. Supports transfers with adequate security assurances but says some have been inadequate. (Doesn’t specify examples of what he means.)
Colleen Kelly says her family has different opinions about Guantanamo but everyone agrees the attempt to prosecute 9/11 defendants has gone on too long and the victims and country needs closure.
Under questioning by Tillis, Stimson says closing Gitmo “can be done.” Logistics would be easy with just one planeload. Legal (bringing to domestic soil prison) raises a lot of open questions. Political is the toughest. Congress has imposed impediments and would have to help.
Jaffer acknowledges that Guantanamo has imposed reputational harm on the United States but says what about the reputational harm of Biden withdrawing from the Afghanistan War and abandoning allies there.
Under questioning by Hirono, Jestin says plea agreements can be reached quickly if there is a will. In the Khan case, they negotiated with an experienced DOJ prosecutor who had been detailed to DOD. Recommends getting DOJ prosecutors more involved.
Under q by Hawley re legal rights detainees might get in a US soil prison, Jaffer says some evidence against them may not be admissible (chain of custody) & Stimson says they could file tort lawsuits against their captors (tho also says Congress could enact a law to block that)
Blackburn says nothing has changed to suggest the detainees are any less dangerous than when captured (she doesn’t address the PRB process). With Jaffer, talks about how the end of the Afghanistan War and the Taliban return to power means greater terrorism danger.
Under questioning by Klobuchar, General Baker says commissions have been delayed by D.I.D. — death penalty issues, intrusions by government into atty-client confidentiality, and discovery (classified evidence). Says negotiated plea agreements can solve.
Under questioning by Klobuchar, General Lehnert says Biden needs to put someone in charge of closing Gitmo in the White House or NSC with the authority to drive the bureaucracy to get transfers done, and federal courts using videoconference hearings should handle plea agreements.
Ted Cruz says Obama and now Biden just want to free terrorists.
After Cruz & Jaffer talk about how 1/3 of ex-Gitmo detainees return to terrorism, Durbin says those #s are misleading–>overwhelmingly Bush-era transfers before 2009 standards. Of those transferred after 09, just 5 percent (10 guys, 2 of whom dead) are “confirmed” as re-engaging.
Durbin also points out it was Trump who made a deal with the Taliban promising that the US would withdraw from Afghanistan by the summer of 2021. Thanks the witnesses and reaffirms his support for closing Guantanamo. Gavels the hearing closed.
P.S. Here’s the ODNI data on re-engagement by ex-detainees, showing tilt to the pre-2009 transfers. (Bush admin made bulk repatriations to allies like Saudi Arabia w/out the individualized vetting Obama admin put in place. Also perhaps some aged out as they got older.)
With the New York Times, I have filed a new lawsuit against the United States Central Command seeking public disclosure of surveillance footage related to the tragically botched Aug. 29 drone strike in Kabul. Specifically, the lawsuit — filed under the Freedom of Information Act — seeks aerial footage starting five minutes before the drone started tracking the white car and ending five minutes after the attack.
This strike is a promising subject for a FOIA case because it has attracted an unusual amount of public interest and the government has already declassified an unusual volume of information about it. Thank you to the NYT newsroom’s lawyer, David McCraw, and our new annual First Amendment Fellow, Jess Hui, for representing me in this litigation.
The military carried out the strike amid its massive and chaotic evacuation operation at the Kabul airport as the Taliban swept into control of Afghanistan. Three days earlier, a suicide bomber claimed by ISIS-K had blown himself up within the desperate crowd, killing at least 182 people, including 169 Afghan civilians and 13 American service members. The previous day, the Pentagon had announced a drone strike that it said killed ISIS-K’s planners, but everyone was bracing for more carnage. That Sunday morning, the military announced a second drone strike that it said had killed additional would-be ISIS-K suicide bombers headed to the airport. But soon, chatter began to arise that a civilian family, including children, had been killed in that second drone strike.
While acknowledging there had been collateral damage, the Pentagon initially maintained the strike had been “righteous” while putting out more information: there had been intelligence that attackers would be using a white Toyota and the one it had been following had gone to a suspected ISIS-K safehouse and then engaged in suspicious behavior. It also said there had been a secondary explosion that was consistent with bombs being in the car. But as my colleagues at The Times later showed in an excellent reconstruction using all kinds of video footage from Afghanistan — a rare opportunity since drone strikes seldom occur in urban settings where there are cameras all over the place — the driver of the targeted car was an innocent aid worker whose apparently suspicious behavior had been ferrying around water containers, not bombs. The Pentagon eventually acknowledged that it had made a tragic mistake: no ISIS-K fighters had been killed, and it now said a propane tank was most likely the cause of a secondary explosion.
I want to take this opportunity to respond as well to some controversy over a Twitter posting I made right after the AP moved a story about the initial announcement. When the Pentagon said that it had managed to kill ISIS-K bombers bound for the airport, I had found it weird: how to account for a world in which, in just a few days, the American military had gone from being blind to an ISIS-K suicide operative walking up to the airport gates, to apparently being able to figure out both where the plotters were and even in which car the next wave of would-be attackers were coming? I had a thought that I considered cynical: had the Taliban – at war as well with ISIS-K, a conflict that would continue after the Americans left – begun sharing intelligence about the shared enemy from its own spies, a possibility the government would doubtless try to conceal as awkward and humiliating? I typed the following into a Twitter post as a comment on the AP headline: “The US clearly has a remarkable intelligence line of sight into ISIS-K right now.” Some people immediately picked up on the insinuation lurking behind my statement. An Arizona-based criminal defense lawyer wrote: “Yes. My question is, is that assisted by the Taliban, or purely US capability?” I replied: “Based on nothing, I harbor the same theory.” A former F.B.I. counterterrorism agent also responded to my original tweet with the same thought: “And maybe some really good partners, or enemies providing insight,” and a few other Twitter users whom I did not know responded to that posting with comments like “the enemy of my enemy” and “Going to be really awkward once people realize that targeting data is coming from the Taliban.”
In retrospect, obviously, the premise of this whole line of thought was off: there had been no sudden dramatic improvement in intelligence.
After the reports of civilian casualties began to emerge, some internet trolls like Glenn Greenwald had fun denouncing my initial tweet for uncritically taking the Pentagon’s claim at face value. This leveraged hindsight understanding and omitted the context of the above discussion, but that said, it’s a best practice to wait a few days to see what reports emerge from the ground before attempting to assess a drone strike — a lesson I know well from years of drone policy coverage and yet overlooked in this instance. To borrow a phrase my opinion-side colleague Ross Douthat used in a column about his thoughts watching the “shambolic” exit from Afghanistan, those of us who speculated that there might be an uncomfortable origin to the the apparent improvement in intelligence thought we were being cynics — but we actually weren’t cynical enough.
I posted the below thread in response to this tweet from Marcy Wheeler (@emptywheel) promoting a blog post that mainly critiqued an article that has gotten supporters of WikiLeaks and Julian Assange excited. Her post included an aside about “propaganda” from “Pulitzer Prize winning NYT reporters” that turned out to link to this June 16 post ostensibly about me, entitled “Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange is a Journalist.” I was not previously aware of this earlier post, which is all mixed up. I never claimed Assange was a journalist; in fact, I keep going out of my way to explain that whether or not he is one is irrelevant to the press freedom issues raised by the Justice Department’s decision, in its precedent-setting superseding indictment, to expand on the hacking conspiracy charges it had already brought against him by adding Espionage Act charges for the his journalistic-style acts of of soliciting and publishing classified information. In case anyone reads that post and googles to see if I responded, I’m going to preserve the thread here.
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Marcy, I followed the link to your June 16 rant about my analysis of the significance of the expansion of the original hacking conspiracy case vs Assange, adding charges for the act of soliciting & publishing secrets, which I hadn’t seen at the time. You are confused. /1
Most importantly, your headline and the thrust of your piece is false. I never pronounced Assange a “journalist.” I instead discussed “his journalistic-style acts of soliciting and publishing classified information.” Grasping the distinction is crucial to understanding this. /2
What matters about the decision to expand the original charges against Assange is the precedent of criminalizing such *activity.* It doesn’t matter whether he counts as a journalist, a point I make over and over. /3
1st Amendment protections are not tied to being a journalist, so the risks *of the Espionage Act charges* against Assange don’t turn on whether he was one. Weirdly you state this yourself deep in the piece, without seeming to grasp that this insight negates your argument. /4
Perhaps this is just another example of you wanting to ride a pre-existing hobbyhorse – in this case, wanting to detail what DOJ said about Assange and hacking – and using something I said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit. /5
But the linkage is artificial & incoherent. Had DOJ stuck with the hacking conspiracy charges in the original and second superseding indictment, the Assange case would not matter so much for press freedoms issues, as I laid out in a piece analyzing the original indictment. /6
P.S. This has little to do with anything @matthewamiller said in 2013. I have been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL but grappling with the problem that traditional news outlets like the NYT also sometimes publish govt secrets./end
Marcy stormily replied to several of the tweets in this thread. We went back and forth a couple times, creating spin off threads, but those subsequent messages aren’t showing up in WordPress’s automated unroll thread feature and added scant value anyway. People can click to Twittercheck those strands if they want to read them.
Here is a short guide to the complex issue of what kinds of communications-related metadata that prosecutors could have seized from Apple with grand jury subpoenas, including about Schiff, Swalwell and McGahn: /1
These are some types of metadata that can be subpoenaed: when one used apps like Facetime & iMessage, & one’s IP addresses & hardware identifiers like SIM and IMEI #s during those sessions (+ account info like name, address, credit card, & other phone # or email handles). /2
But here is a key type of metadata prosecutors could *not* have obtained with a subpoena to Apple: logs of one’s communications on Facetime or iMessage that would systematically reveal whom one had been confidentially speaking to. /3
That's bc to seize “to/from/when”-style info re electronic coms – like email headers or logs of Facetime calls & iMessage texts – prosecutors need a 2703d court order, not a subpoena. (The DOJ fight for NYT & CNN email data that led to gag orders involved such "d orders.") /4
The law in this area is messy and inconsistent, and to get traditional phone call logs, prosecutors *can* use a mere subpoena. That’s apparently how DOJ got NYT/CNN/WP reporters’ calling logs. But Apple isn’t the sort of company that compiles that category of records. /5
Did prosecutors send a similar subpoena to phone companies, which could have given them call logs of officials like Schiff, Swalwell and McGahn? We don’t know: Apple is more transparent than other companies in notifying customers about data seizures (when it is not gagged). /end
Fifty years ago next month, the NYT began publishing the Pentagon Papers, a seminal moment in the history of the Vietnam War and in leaks of Top Secret information. Its source, Daniel Ellsberg, has made another unauthorized disclosure. /1
Ellsberg also copied a large amount of material about planning for nuclear war, intending to release it later. Most was instead lost. But he kept a Top Secret study of the 1958 Taiwan Strait crisis, when the US almost went to war with China./2
The study – written for RAND Corp. by Morton Halperin – was later partly declassified. But the government whited out dozens of pages about internal deliberations and planning for a potential first-use nuclear strike on mainland China. /3
It had been known in broad strokes that the Pentagon thought about using atomic weapons in 1958 before the crisis ebbed because Communist forces backed off. But we didn't have details showing how eager and serious the push was. /4
Officials pushed for a first-use strike because it doubted that Taiwan and its "Offshore Islands" could be successfully defended using conventional weapons alone. Today, those same concerns are flaring anew./5
Ellsberg believes the Pentagon today must be drawing up contingency plans for what happens if a war breaks out of Taiwan and the US is losing using conventional arms. He says the public should be part of a debate over whether a first-use nuclear strike would be on the table./6
Ellsbert, now 90, also has a parallel but very different motivation: he wants the Biden Justice Department to prosecute him under the Espionage Act for the unauthorized disclosure he is openly confessing./7
When the Nixon Justice Dept charged him under that law for leaking the Pentagon Papers, its use in a leak case was novel. (The case was thrown out for unrelated reasons.) Under the Bush-Obama-Trump Justice Dept, it has become routine. But most cases plead out, averting appeals./8
Ellsberg said he would not strike such a plea deal, and would handle his defense to tee up for the Supreme Court to confront whether it violates the First Amendment to use that WW I-era law to criminalize unauthorized disclosures of government secrets in the public interest./end
After neglecting this website for awhile, a recent technical mishap required me to pay attention to it again to fix it (with help once again from my friend John Musser of Digerati Designs). That’s a good opportunity to take note of two book-review essays I wrote as a freelancer for publications other than The New York Times.
In October, The Nation published my piece pegged to Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act by Nicholson Baker, a book about his failed quest to used FOIA to prove his suspicion that the United States has been covering up some battlefield use of biological weapons in the Korean War. It was headlined “The Blacked-Out Line: Nicholson Baker in the labyrinths of American secrecy.”
In service of his schtick, @ggreenwald is again putting forward a series of bad-faith misrepresentations re the CIA Russian bounty assessment and the NYT reporting on it. I’m going to dissect various ways he is demonstrably gaslighting, after which I’ll ignore him. /1
At a hearing last year, various lawmakers brought up the recently disclosed bounty issue while also expressing skepticism about Trump’s plan withdraw 4100 of 8600 troops in Afghanistan. Glenn concocted a theory the bounty story was a conspiracy to keep the war going. /2
At the onset, there’s a big conceptual problem he’s never engaged with: The assessment was a reason to be angry at Russia, but it was also a reason to be *less* suspicious of Taliban leaders: some recent attacks were perhaps astroturfed and not their doing. /3
The big threat to hopes for ending the war was not lawmakers’ skepticism of an abrupt halving of troop levels, but the risk of disrupting the Doha peace talks with Taliban leaders. If a big attack happened, the US could not jump to the conclusion that the Taliban were to blame./4
But besides ignoring that glaring logical gap, let’s look at signs of deliberate obfuscation. For ex, this sentence creates the impression the CIA “cooked up” its “tale” in close proximity to its disclosure, which would support his narrative. It was actually then 5 months old. /5
Glenn’s narrative also needs the CIA to have leaked this, scheming to manipulate public opinion again! So he fosters an impression the agency was our source (“this conveniently leaked CIA story,” “CIA propaganda”) & sometimes outright calls it “the CIA leak.” /6
He’s even absurdly invented out of thin air a claim that the NYT somehow “admitted” the leak came from the CIA. He actually has no idea from where we managed to piece it all together. Multiple parts of the executive branch knew about it and it had been shared with allies./7
Relatedly, his claim of a timing link to Trump’s troop reduction plans turns on the premise that our reporting was brief and minimal, like Snowden handing him docs to summarize. He has no idea when we first heard about the assessment and how long we worked to figure it all out./8
Glenn’s narrative needs the CIA’s judgment to be a hoax like Trump said, so he keeps saying there was never any evidence presented for it. In the real world, we rapidly dragged out an unusual amount of detail about the underlying evidence’s scope & limits last year. /9
Putting aside the info the Biden admin recently declassified, we wrote a lot last year about evidence like statements by detained members of a criminal network in contact with Unit 29155, the dovetailing travel data and $ transfers – and the lack of surveillance intercept./10
Glenn keeps saying the “story” has been discredited, using fast-and-loose language that blurs the distinction between the CIA assessment itself & the NYT’s reporting on it. In reality, everything we reported about its existence & the Trump admin’s handling of it was accurate. /11
The assessment itself is like most intel analysis seeking to make sense of what an adversary may trying to hide. The rival confidence levels the WH cited were known in 2020, not a new and thus discrediting event. All the analysts agree the assessment is the best explanation./end
P.S. Predictably, Glenn has responded to this thread not by rebutting it, but with cynical insults and false insinuations. I have known him since his earnest “How Would a Patriot Act?” days during the Bush years. He is not the same person he used to be.
In my 2007 book, “Takeover,” I included a quote from a speech by Justice Antonin Scalia about his time as a senior Justice Department official in the Ford administration and during the Church Committee investigation. (Scalia was then the assistant attorney general for the Office of Legal Counsel.) I recently had a chance to listen to a recording of that speech and realized that my younger self slightly mis-transcribed it. This did not change the meaning, fortunately, but I want to take note of the error. In addition, because people on several occasions over the years have asked me for a copy of the whole speech, it seems worth taking this opportunity to make it generally available in case it can be useful to other scholars. So I’ve uploaded an MP3 to Google Drive and am linking to it at the bottom of this post.
Preliminary contextual notes:
First, Scalia made these remarks on June 12, 2007, as a keynote address for a national-security legal conference in Ottawa, Canada, called the “International Conference on the Administration of Justice and National Security in Democracies.” I also attended this conference as a panelist speaker and have a recording of his speech.
His appearance got some media attention because in a separate Q&A session, he was asked about the possibility of prosecuting officials who tortured terrorism suspects, and responded by saying that no one would prosecute Jack Bauer of the TV show “24” for torturing a bad guy to save Los Angeles. But it appears in my book that I was the only one to take note of anything from his main remarks, and this recording appears to be the only available record of them. In addition to his memory of having had to review covert actions during the Church Committee, Scalia also talked about something regarding the FISA court (a reform that grew out of the Church investigation) I did not know, and am not sure if had been previously disclosed (it certainly wasn’t widely known if so even among nat-sec legal types, based on my conversations): although on its face the warrant requirement for national security investigations created by the original Foreign Intelligence Surveillance Act of 1978 applied only to (certain) wiretapping, the Carter administration sought and obtained FISA warrants for physical searches (black-bag job break-ins) in counterintelligence and counterterrorism investigations on domestic soil. The Reagan administration quashed that by applying for such a warrant but also arguing that the FISA Court had no jurisdiction to issue one, and getting a judge on the court to agree, after which the executive brach resumed doing warrantless searches in such cases until the Clinton era, when Congress expanded FISA to cover black-bag break-ins. See “Takeover” pp 30 and 48-49.
Second, “Takeover” was published in September 2007, so the manuscript would have been complete and edited by that June and its index was also probably already done, making it hard to make changes. Straining, I can conjure up a vague memory of shoving these new tidbits into it; that haste probably explains but does not excuse the imprecision. In “Takeover” the excerpt about covert action approvals during the Church Committee appears like this, with the now-suspect bits in bold:
Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus [*] to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.
Listening again to the recording, I now think Scalia’s actual words were:
During part of this period I attended a daily morning meeting in the Situation Room of the White House at which Bill Colby, the Director of Central Intelligence, Jack Marsh, Secretary of the Army, Mitchell Rogovin, a special counsel, uh, outside counsel, hired by the CIA, and a number of other high level officials decided which of the nation’s most highly guarded secrets would be turned over that day to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department. So, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus adequate to protect against penetration by foreign operatives. We had enough security procedures to frustrate la Cosa Nostra but not the — not the KGB.
So I erroneously placed the opening quotation mark before the word “we,” but “we” was a paraphrase so the quotation mark should have come after it. I also slightly misplaced the phrase “that day” and missed the word “adequate.”
Note that Scalia misidentified Jack Marsh’s role; Marsh was actually a counselor to Ford in the White House and didn’t become secretary of the army until the Reagan administration. (Marsh, who died in 2019, was kind enough to give me an interview when I was researching the book in 2006.) The audio quality is a little muddy in spots, so others may have a slightly different interpretation.
I am indebted to Bruce Murphy of Lafayette College for restoring to me a copy of this audio recording. He had asked me for it some years ago when he was working on what became his 2014 book Scalia: A Court of One and I sent it to him, but when I recently went looking for my recording again I was unable to locate it – that was several computers and email accounts ago. He still was able to find a copy of what I had sent him and emailed it back, saving it from oblivion.
Over the course of about 15 months in 2019-20, I developed a special side project: a deep look at a political and culture-war fight that broke out in my hometown of Fort Wayne, Indiana, last year, over creating a new honor for the town’s namesake, who conquered the Native American tribes in the Midwest and opened it up for white settlement. Digging into this would take me to Oklahoma to visit the tribal nation that once lived where Fort Wayne now stands, and lead me to excavate some important but not always pretty truths about the area’s history that we were never taught in school growing up. The complexities and perspectives raised by this fight in many ways anticipated the broader national moment touched off by the police killing of George Floyd in Minneapolis. The project was published by POLITICO Magazine as “When The Culture Wars Hit Fort Wayne.”
In the course of researching the history of the region, I also learned that there is a major Native American burial ground under the city’s Spy Run area, just north of downtown. It was casually desecrated when the area was developed as a residential neighborhood in the late 19th and early 20th centuries. And other than a fragment of open space that was restored 60 years ago and misleadingly named the Little Turtle Memorial, it has since been forgotten — almost literally covered up. I had room for only a few sentences about it in the main POLITICO Magazine article, but used that research to write a stand-alone piece about the cemetery for The Fort Wayne Journal Gazette, which published it as “Buried Concerns.”
Here is a curated set of source documents about the Miami tribe cemetery beneath Spy Run.
