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.
Several people asked me if I could share that report. I told them that while it’s possible I have a photocopy buried somewhere, I wasn’t sure how to easily put my hands on it. But in a coincidence, I needed to go up to the National Archives in College Park Wednesday to pickup some documents I had FOIA’d out on an unrelated matter. So while I was up there, I also took the time to ask the archivists to pull that box out of Meese’s files for me again, and I scanned the report. I am posting it here (and adding it to the short list of rare primary documents from Takeover or my other book, Power Wars) in case it may be of interest or use to specialists.
In cracking open the box — from Meese’s correspondence files with his Office of Legal Policy — I noted a marking saying that it had been reviewed and opened for public viewing in November 2006. I.e., I had been the first person to request access to that box. I wondered if anyone else had touched those pages in the intervening 13 years.
Upon re-reading the report, I also decided that when my younger self discussed it in Takeover, I had been imprecise in two respects:
LENGTH: My book calls it an eighty page memo. The main report and first two appendices, which contain original material with analytical value (e.g., a detailed summary of separation-of-powers fights during the Reagan years), comprise 81 pages. But there were additional appendices of diminishing interest (e.g., photocopies of several Federalist Papers). The PDF I scanned and posted (click here for downloadable version on DocumentCloud) is the whole thing.
SCOPE OF ITS DISCUSSION OF THE UNITARY EXECUTIVE THEORY: By using this memo as a narrative jumping off point to explicate the Reaganites’ executive power theories, my book may create the impression that this particular report lays out a detailed defense of one of them, the Unitary Executive. While the report dove deep into their related theory of how the Framers wanted the separation of powers to work, its engagement with Unitary Executive issues is briefer because, it says, the status of independent agencies was “already under thorough consideration” elsewhere within the department.
It was once rare for Congress to go to court. But the number of cases House Democrats are now litigating is historically unprecedented — a Trump-era aberration that is accelerating a larger shift in governance whose seeds predate Trump. w/ @npfandos
It’s routine, of course, for the executive branch, via the Justice Department, to make arguments to the judicial branch. But it was once all but unheard of for the legislative branch. Congress had to pass a special law for a Senate committee to seek the Watergate tapes, for ex.
Then, in 2008, Congress broke new ground w/ a lawsuit to enforce subpoena re US attorney firings. It filed another in 2012, re Fast and Furious. Now, a deluge: 5 cases already (Mazars, Deutschebank, Mueller report, Trump taxes, McGahn) & more coming. (Twist: Trump filed 1st 2.)
Similarly, it was once weird for Congress to go into court to defend a law that DOJ abandoned. It happened in the 70s w/ legislative vetos, but that was a special topic: presidents saw them as unconstitutional intrusions on exec power (SCt agreed in 1983). This is changing too.
In 2011, the Obama administration abandoned the Defense of Marriage Act, not a separation-of-powers law but a matter of general governance. The House stepped in to defend it against constitutional challenges, until the SCt struck it down in 2013.
This year, that has happened twice already: the DOJ has abandoned the Affordable Care Act and a law against female genital mutilation, and the House has sought to intervene and provide lawyers to go to court to keep defending both laws against challenges.
Another category: the legitimacy of executive branch spending decisions. In 2014, the House GOP filed a lawsuit challenging Obamacare subsidies to insurers. This year, the House filed another, challenging Trump’s invocation of emergency powers to spend DOD money on a border wall.
The House is also increasingly filing amicus (friend of the court) briefs, and sometimes making arguments, in other cases to which it is not a party. 4 this year so far: the Census case, other border wall and ACA cases, & a lawsuit seeking voting rights for District of Columbia.
And of course Trump sued the House Ways and Means Committee to prevent it from asking the state of New York to provide his state tax returns. That’s another example where part of the spike in the numbers are is driven by the present abnormal moment.
But the surge in numbers is making clearer in hindsight that things were already starting to change in recent years before Trump, kind of like how Bush's unprecedented signing statement #s, and Obama's unprecedented leak case #s, had seeds in the actions of predecessors.
This deeper trend is likely a symptom of partisan polarization. As political negotiation and compromise becomes harder, litigation replaces it. Thus even if the #s drop some under Trump’s successor, it seems likely that this new practice will continue as part of our governance.
One thing that will be interesting to watch is how trans-branch partisan teams fuel it. In 2011, when House GOP decided to intervene and defend DOMA, it paid a couple million dollars to Paul Clement, a former Bush administration solicitor general, and his firm for the legal work.
Obama legal team veterans are similarly helping House Dems this year — but they & their firms/NGO are working for free. They include 2 former SGs, Don Verrilli & Neal Katyal, a former OLC head, Virginia Seitz, & two former senior nat-sec lawyers, Mary McCord & Josh Geltzer.
I think some gotcha takes are missing the mark re Barr’s comments about the “hysterical” media insinuating that the Trump admin was thinking about adding the citizenship question to the Census by executive fiat. There is something here worth scrutinizing, but it’s different. /1
People are citing Barr saying Monday, after being asked about an executive order, that “it does provide a pathway for getting the question on the Census” — but then saying Thursday that there was no truth to reports that the admin was weighing adding the q by executive fiat. /2
The 1st problem with this is that on Monday, his fuller quote shows that the antecedent to “it” was a soon-to-be-revealed “approach we’re taking,” which is vague and doesn’t necessarily mean an executive order. /3
The 2nd problem is that on Thursday, his fuller quote shows that Barr's point was that the admin was never thinking about putting the question on the Census *without going through judicial review,* i.e. just defying the injunction. He wasn't saying no exec action, period. /4
So the take that these 2 statements amount to Barr saying they were thinking about using an executive action and then brazenly criticizing the media for saying they might use an executive action, is doubly off. But there is something else questionable here. /5
Barr explained on Thursday that there is simply not enough time left to litigate a new rationale for putting the question on the Census. But that was just as true back on Monday when he nevertheless claimed there was a pathway for doing that. /6
Therefore, if what Barr said on Thursday is true, what he said on Monday was false at the time he said it: there was never a pathway. One potential explanation is on Monday, he was saying what Trump wanted to hear and what was politically expedient–not being an honest broker. /7
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.
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.
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.