FOIA: Some newly declass’d FISA Court stuff from the 2011 Bates MCT/702 case

Here are some newly declassified documents from a FISA lawsuit that add to the historical record of the MCT issue that arose in 2011. They provide a little bit more information about the sequencing of the case before the Foreign Intelligence Surveillance Court and the questions that Judge John Bates was asking. I don’t immediately see a stand-alone New York Times news story in them so I’m just posting them here in case they are of interest to specialists.

Context: In August 2013, early in the wave of declassifications of FISA Court rulings following the Snowden disclosures, the government made public two rulings from October and November 2011 by Judge John Bates. They were about the FISA Amendments Act Section 702 program’s upstream system and the problem of multi-communication transactions, or MCTs, that resulted in purely domestic messages being collected without a warrant. That’s of course been in the news again lately because it turned out the fix Bates agreed to, to make this reasonable under the Fourth Amendment, was never properly implemented by the N.S.A, and this spring the agency decided to end “about the target” collection, which will significantly cut down on the number of MCTs it will ingest.

One of the important things in the declassified 2011 Bates opinions that has been oft cited in surveillance legal policy writings ever since is that the N.S.A. had told him it collected “more than 250 million Internet communications” a year via the FISA Amendments Act, of which about 91 percent came from the Prism system (from Silicon Valley firms like Google) and about 9 percent came from the upstream system (from telecoms like AT&T). Last year, I came to suspect that something about this number may be wrong – that it is possible Bates may have misunderstood something – and decided to FOIA for the other materials in the docket, which the government had not released when it put out his opinions.

With help from David McCraw, the NYT FOIA lawyer, we filed suit, combining this request with several other outstanding ones for national-security related documents in the possesion of the Justice Department. Here is the first tranche of files related to the 2011 FISC/MCT case stemming from that lawsuit. It’s not the good stuff yet, but rather some low-hanging fruit. So stay tuned for future tranches, which will be more difficult for them to agree on how and what to declassify.

ODNI transparency report nerding: 151 million “call detail records”

Several people have blogged things trying to make sense of the disclosure this week that the USA Freedom Act system (which replaced the Patriot Act Section 215 bulk calling records program) collected 151 million call detail records in 2016, even though the intelligence court had approved two-hop collection surrounding only 42 suspects. To be sure, this number, 151 million, is small compared to the billions of records per day the old system was sucking in, but it is nevertheless surprisingly large on its face. I wanted to make two in-the-weeds points – one about the math in general, and one a response to Marcy Wheeler at Emptywheel.

I was told there would be no math

As people try to crunch the numbers of how to get to 151 million, a crucial thing to grasp is that a Freedom Act order is not merely a two-hop pen register, in which the N.S.A. gets prospective logs of all the new messages of its target and everyone in contact with him. Rather, it’s also a request for historical billing records still in the providers’ possession. So that’s potentially years of logs of phone calls (and probably SMS text messages) for each person in the suspect’s social circle, even though the government only collected those records during the calendar year of 2016. This factor will dramatically expand not just the number of calls a suspect would have, but also the number of social-link people who will contribute their own universe of second-hop records.

Another important insight is what it means that the government warns about duplication within the 151 million database: a lot of those 151 million records are redundant. For example, if the suspect, Joe the AT&T Customer, called his friend, Mary the Verizon Customer, the government would receive two records stemming from that single call – one from AT&T and one from Verizon. This problem extends to second-hop records: if Joe also called his other friend Fred the Sprint Customer, and Fred and Mary are also friends and separately called each other, the government would receive redundant records of Fred’s and Mary’s call from both Verizon and Sprint.

Another wildcard is that we don’t know is how much garbage is in the system from contacts with businesses and other entities that make a lot of phone calls to unrelated people, creating a potentially larger second-hop universe than an ordinary contact would – like if Joe called an auto body shop or a restaurant etc. which separately called or received calls from thousands of other customers over the years. Presumably the N.S.A. system is set up to invalidate the most commonly called numbers before requesting the second-hop records, lest they generate so much random noise that it would drown out the signal they are hunting for. But there must be some mid-sized entities that haven’t been added to the block list or that investigators wanted to keep for some particular reason – like, say the trunk line for the business where a suspect works. So this factor, too, could help get us to 151 million.

Response to Emptywheel

At Emptywheel, Marcy Wheeler has written an analysis of the 151 million number that has some elements I think are valuable contributions but also some that I am more skeptical about. Her introduction frames it as correcting misconceptions purportedly created in part by my New York Times article about the ODNI report. I reached out to her by email, but she wanted to have the conversation in public.

About half of her piece is devoted to showing how the math to generate 151 million call events within a year is implausible. Eventually, after hundreds of words, she reveals that this premise was a red herring because it is actually about historical records, not just prospective ones. Well, yes. My article said this was about “calling histories” involving “years” of phone records, so it created no such misconception, I hope.

Marcy also states that this is about more than just calls – it’s also about texts. I had only discussed “calls” in my article, but I think it’s likely right that SMS texts are also part of the mix since phone companies keep track of those for billing purposes and they serve the same purpose of identifying social links between people. Texts might also help get us to 151 million: a single conversation consisting of 10 SMS texts could be logged as 10 separate records, or 20 if duplicated between two carriers.

But Marcy then puts forward the idea that the 151 million message records in the ODNI report likely go beyond phone company records of calls and SMS texts and include other stuff, too, like websites visited on a cell phone’s browser and message logs from apps like WhatsApp and iMessage (both “certainly,” in her view) and Signal (“possibly” in her view). Indeed she says the latter is “necessarily true” for two reasons: because members of Congress have expressed concerns about electronic communications service providers that don’t keep records past 18 months, and because a lawmaker has said a large list of companies receive orders under the Freedom Act system.

Sometimes when Marcy speculates about things, she labels it a “wild-arsed guess,” but there is no such caveat here and she seems to be putting it forward as something her readers should treat as a fact. I am skeptical that this claim should be treated as a fact. Everything I have heard is that the Freedom Act system as it now exists, at least, is just about traditional telecom-based telephony (i.e. calls and SMS texts), echoing the predecessor Patriot Act program. I am aware of no evidence supporting the idea that the Freedom Act system has expanded to web browsing or app-based services from internet companies.

Importantly, the ODNI transparency report talks about the 151 million records coming from “telecommunications providers,” not electronic communications service providers generically speaking. Telecoms are a type of electronic communications service provider (defined here and here) that is generally understood to be phone and network companies, like AT&T, that transmit users’ signals and are regulated by the Federal Communications Commission under the Telecommunications Act of 1934. Messaging services that use the Internet but do not operate it, like WhatsApp, are a different type of electronic communications service provider and are generally not called telecoms.

I also do not see how the two pieces of purported evidence Marcy points to prove that metadata from WhatsApp-style services are nevertheless part of the 151 million records.

It is true that some members of Congress are interested in firms that do not keep their records longer than 18 months, but the context of that interest was rooted in traditional telephony: the F.C.C.’s regulation requiring phone companies to hold onto billing records for at least that time is understood to apply only to landline services, not cell phone services. Part of the debate about the Freedom Act was whether to impose a new data retention requirement on cell phone services to make sure relevant records would be there if the N.S.A. wasn’t storing its own copy.

It is also true that a lawmaker has said a sizable number of companies are receiving Freedom Act orders, but that also can be consistent with a telecom-only universe. As far as we know, only the three biggest telecoms were part of the old Patriot Act system – AT&T, Sprint, and Verizon – because the N.S.A. did not trust smaller telecoms to keep its existence a secret. Since the new system is not a secret, the government can obtain orders for all telecoms if it wants, and there are a ton – here’s a list – more than enough to make the number of those receiving Freedom Act system orders large and significant.

Does that mean the government could not ask the Foreign Intelligence Surveillance Court to interpret the words of the statute as justifying Freedom Act orders to internet messaging services? I would not rule it out as impossible. But I am aware of no evidence it has happened yet, and I don’t think it’s necessary to get to 151 million records collected in 2016.


Here’s a previously top secret 2005 Bush Justice Department memo on Stellarwind surveillance and prosecutors’ discovery obligations

In response to one of the Freedom of Information Act lawsuits I am fighting with The New York Times’ lawyer David McCraw and our annual First Amendment Fellow, Ian MacDougal, the government has turned over a May 2005 memorandum by Patrick Rowan, who was then a top national-security prosecutor in the Justice Department’s Criminal Division. This memo is about the government’s discovery obligations arising from the Stellarwind warrantless surveillance and bulk metadata program. One of the inspector general reports about Stellarwind that we liberated through previous FOIA litigation had a section about the drafting and contents of this memo, so I FOIA’d for it. (I’ve put that section of the IG report into the same Document Cloud file posted below.)

Rowan’s memo is fairly heavily redacted. (I’m sure we’ll challenge some of the redaction markings at a later stage of the lawsuit.) It’s a little hard to tell what’s going on as a result, but it looks like the thrust was about a scenario in which the Justice Department is prosecuting a terrorism case and the National Security Agency has, via Stellarwind, an intercepted conversation that might help his defense. Does the government have to turn it over? Of course most prosecutors didn’t even know Stellarwind existed at that point, so the matter turned in part on whether and when they had an obligation to ask the intelligence community to search its files generally just in case, etc. It looks like Rowan’s memo did not so much reach definitive conclusions as identify issues that would have to be addressed if DOJ came up with some kind of process for dealing with terrorism cases that might have secret surveillance evidence arguably subject to so-called “Brady” disclosure — the constitutional requirement that prosecutors turn over information in the government’s possession that could be helpful to the defense. Since this was described in the inspector general report already, I’m not sure there is a news story here. But I’ll put it out there for fellow surveillance nerds.

Notably, it does not look like Rowan, at least in these unredacted sections, was addressing the issue that arose in 2013 within the Justice Department regarding its Brady obligations and the FISA Amendments Act program that descended from Stellarwind. The 2013 fight was instead about whether DOJ had to notify defendants that they were facing evidence derived from FISA Amendments Act warrantless surveillance, meaning they had standing to challenge the legality of the underlying surveillance through a motion to suppress that evidence.

As an aside: Neither the IG report nor the memo have, in their unredacted sections, an explanation about why Rowan would be looking into the topic in the spring of 2005, but my guess is that the question occurred to them because of the accidental provisioning to lawyers representing al-Haramain, a defunct Oregon-based charity accused of funneling money to terrorists in Chechnya, a document containing copies of conversations between a leader of the charity and his attorneys apparently picked up (it was later alleged) via Stellarwind. Later in 2004 the FBI had demanded those records back, and in February 2005 Pete Seda, an officer in the charity, was indicted.

Of course, in December 2005, my future colleagues at the Times, Jim Risen and Eric Lichtblau, published their famous article disclosing the warrantless wiretapping component of Stellarwind and the Bush administration acknowledged it. In the al-Haramain matter, Seda had later tried on appeal to say evidence obtained via a search warrant should be suppressed because the investigation derived from Stellarwind, but the Ninth Circuit didn’t buy it. Separately,back in March 2006, al-Haramain’s lawyers filed a lawsuit challenging the program and citing that record they had been shown in 2004 as giving them standing, but the judiciary wouldn’t let them use it. They later filed a different case over that surveillance and won at the district court level, but lost on appeal.

[I revised this post a bit after first posting it, adding the reference to Pete Seda, and reordering it to make it flow a little more coherently.]


Savage-NYT FOIA Rowan Stellarwind Discovery Obligations Memo (Text)


More Gitmo military commissions action at the Supreme Court: Bahlul cert petition filed

Defense lawyers for Ali Hamza al-Bahlul have filed a petition asking the Supreme Court to take his appeal of his conviction before a military commission of the non-war crime of “conspiracy.” It should be docketed tomorrow.

Bahlul’s case has created one of the most complex appellate matters arising from the tribunals system. It went up and down several times between a three-judge panel and the en banc Court of Appeals for the District of Columbia and it led to an internal split in the Obama adminsitration. In Power Wars, see Chapter 10 (“Wounds that Won’t Heal: Captives 2011-2015”), Section 8 (“War Crimes, Real and Imagined”).

It comes fast on the heels of a cert petition in the Nashiri case. So lots  of interesting military commissions action at the Supreme Court is coming, potentially. If they take them.

Here’s my article about the most recent Bahlul ruling at the D.C. Circuit level, from last fall. And here is the cert petition, which should be docketed tomorrow:


Trump administration releases Obama-era Gitmo Detainee Review Task Force guidelines, Vaughn index of withheld dossiers in FOIA case

One of the Freedom of Information Act lawsuits I am fighting against the government with The New York Times is seeking the factual sections about 240 dossiers about the Guantanamo detainees who remained at the wartime prison when President Obama took office in 2009. Obama created a six-agency task force that went back over the intelligence about each man, and in many cases it found that some of what had been in earlier Bush-era threat assessment dossiers — the files that Chelsea Manning leaked via WikiLeaks — was inaccurate. but the Obama-era dossiers, which were the basis of the lists of those recommended for transfer, prosecution, or continued detention, have not been made public. I have argued in this essay, whose headline I do not like, that it makes sense for policy reasons for the government to make these dossiers public, since much of the information is already public via the Manning disclosures and if the government now believes some of that information was inaccurate, it should correct the record.

The government has now filed its response to the FOIA case, asking Judge Berman to dismiss the case. The main thrust of its argument is that even the factual matters should fall under the deliberative process exemption because the task force’s selection of facts was a deliberative choice. Plus classified info, etc. We’ll argue, of course, that the factual sections are distinct from the policy recommendation sections and that the government relied upon the dossiers in putting together its recommendation lists and so waived the privilege.

Two things are especially notable in the government’s response. First, it includes the task force’s guidelines, which I do not believe have previously been made public. Second, it includes a Vaughn index describing the dossier about each detainee, including the number of pages each man’s file has.


Govt Response to FOIA for 2009 Gitmo Detainee Task Force Assessments (Text)


Edward Snowden’s Hong Kong barrister authenticates hotel records debunking mystery gap claim

In the New York Review of Books, I have been engaged in a debate with Edward Jay Epstein about his book, “How America Lost Its Secrets: Edward Snowden, the Man and the Theft,” which lays out the case that Snowden was an espionage source for the Russians or Chinese masquerading as a whistleblower. I wrote a very critical essay-review of this book, concluding that wherever one falls in the spectrum of views about Snowden’s actions, Epstein’s book is not credible because his methodology is to indulge in speculation and insinuations anchored to “facts” that are themselves dubious (and, as a separate matter, he gets all kinds of basic facts about surveillance wrong).

That being said, I have always been fascinated by cases involving whistleblowing. In case you did not know, whistleblowing occurs when a worker reports specific types of wrongdoing. The wrongdoing that is disclosed must be in the public interest. So, the information being shared should affect others, including the general public for instance. As a whistleblower, you are also protected by law. This means that you should not be treated unfairly or lose your job as a result of whistleblowing. You can discover more about whistleblowing law by checking out some of the useful resources at Ultimately, for his part in the biggest intelligence leak in the history of the NSA, Edward Snowden has become one of the most widely known names in the world.

Anyway, one of the examples I selected to illustrate my argument was the heavy and sinister significance he puts on the “fact” that Snowden only checked into the Mira Hotel on June 1, 11 days after his arrival in Hong Kong, leaving his prior whereabouts in that city a mystery. Epstein’s reporting is the primary source of this claim – first in a June 2014 Wall Street Journal column, then in his book. He has also claimed that he has anonymous sources who told him that American investigators could find no hint in hotel and credit card records about where Snowden was staying earlier. In my review, I suggested that given the available information to date, this “fact” was vaporous. And after some further back and forth, I concluded in the most exchange:

Perhaps someday the Mira’s records will emerge into public view and we will have more solid information to evaluate this question. Either way, my central point remains unchanged: Epstein treated the check-in claim as a factual anchor for his insinuations about what Snowden might have been doing earlier, but at the time he wrote his book (and still today) the evidence for this claim was insufficient to establish it as a proven fact. This is part of a recurring pattern with his methodology.

Snowden’s Hong Kong lawyers have now finally obtained his hotel records, which Glenn Greenwald first reported at The Intercept and I have posted below. They show that Snowden checked into the Icon Hotel on May 20 and spent one night there, then moved to the Mira Hotel, where he checked in on May 21 until he checked out on June 10. (He was initially set to check out on May 31, but extended for one night to June 1, and then extended for another 10 days.)

I am not aware of anywhere that it has previously been reported that Snowden had stayed in a different hotel his first night in Hong Kong. But in any case, the documents showed he stayed in both the Icon and then, starting on May 21st, the Mira, under his own name, using his own credit cards. So there is no mystery gap, and the credit card records obviously were readily available to American investigators all along.

Origin and chain of custody of the documents

Greenwald got the documents from Snowden, who obtained them from his lawyers in Hong Kong. I reached out to Robert Tibbo, a barrister working for Snowden in Hong Kong, and showed them to him. He confirmed that they are the same ones that the two hotels had turned over, and that he had transmitted to Snowden. Specifically, he told me:

After lengthy efforts on behalf of Mr. Snowden, we were able to secure his hotel records from the ICON and Mira hotels in Hong Kong. I was present with Jonathan Man when the ICON hotel management printed out and handed Mr. Snowden’s hotel records to Jonathan Man. As for the Mira Hotel, their lawyers delivered Mr. Snowden’s hotel records directly to Mr. Man’s law firm. Mr. Man then brought the original documents to my law office to examine. All documents were then communicated to Mr. Snowden at that time.

Notably, Tibbo has also publicly said he witnessed Snowden destroy his hard drives before leaving for Russia, a corroboration of Snowden’s account that Epstein — who also treats as fact his claim that Snowden instead brought NSA files to Russia — omitted from his book even though he had interviewed Tibbo while researching it. Regarding the Mira issue, Tibbo also said:

With Mr. Snowden’s hotel records now obtained and disclosed to the public, this puts to rest any doubts on his residence in Hong Kong during the period of 20 May to 10 June 2013. I would highlight that in May 2014* I met with journalist and author Edward Epstein who I clearly told that Mr. Snowden was living at a hotel during his stay in Hong Kong from 20 May to 10 June 2013. He chose not to believe the truth.

* Note: Tibbo initially wrote May 2015 and later asked me correct his typo; the year is important since May 2014 was prior to Epstein’s original June 2014 column, not just his later book.


Two FOIA lawsuits: Trump-OLC communications & post-Snowden NSA security shortcomings

Yesterday, the NYT and I filed a new Freedom of Information Act lawsuit seeking communications in January 2017 between the Trump team (transition team, then post-inaugural White House) and the Justice Department’s Office of Legal Counsel about the legality of proposed executive orders and executive actions, including its blessing of the first travel ban order and its Jan. 20, 2017 memo saying it would not violate the federal anti-nepotism law to give Trump’s son-in-law, Jared Kushner, a White House job. The case was assigned to Judge Castel in SDNY.

Last month, we filed a FOIA lawsuit seeking the August 29, 2016, Department of Defense Inspector General report “The National Security Agency Should Take Additional Steps in Its Privileged Access-Related Secure the Net Initiatives,” which apparently details various security shortcomings at the NSA identified after the Edward Snowden leaks that the agency has been slow to fix. It was discussed in the September 2016 House Intelligence Committee report about Snowden. (H/T to Marcy Wheeler of Emptywheel, who flagged it to me as something potentially worth FOIAing for.) The case was assigned to Judge Preska in SDNY.

Here is a page on which I track my FOIA litigation with the New York Times’ lawyer David McCraw and our annual First Amendment Fellow, currently Ian MacDougall. We have seven open lawsuits.

In Potential Recusal Reversal, Neil Gorsuch Leaves Door Open to Hearing Supreme Court Cases Involving Billionaire Backer Philip Anschutz

My Denver-based colleague Julie Turkewitz and I have been taking a look at the relationship between Neil Gorsuch, the Supreme Court nominee, and Colorado billionaire Philip Anschutz. The New York Times published it tonight and it will be in tomorrow’s newspaper. One thing the article deals with briefly is the question of whether Gorsuch will recuse himself from cases involving Anschutz’s numerous business interests. This is too weedy of an issue to plumb in depth in a newspaper article, but I’ll explore it a bit more here for legal ethics nerds.

Bottom line up front: Gorsuch systematically sought to recuse himself from such cases on the appeals court, but he is signaling that he may change that practice and leave himself free to participate in cases involving Anschutz’s interests if he is confirmed to the Supreme Court.


At the appeals court, Gorsuch routinely recused himself (with one slip-up) from Anschutz related cases “because my former client” was involved, according to a list he submitted to the Senate. When working on the article, I asked him, via his team, whether he would continue that same practice at the Supreme Court, expecting to hear “yes.” But that’s not what they said.

Instead, his spokeswoman, Liz Johnson, emphasized to me that his recusal practice at the appeals court “likely goes well beyond what is required by law or his ethical obligations.” And she pointed me to a section about recusals in his recent Senate questionnaire in which, while pledging to recuse from “cases that might give rise to an actual or apparent conflict of interest,” he also wrote that his appeals court precautions have been “broader than the recusal procedure adopted in the Supreme Court, which I would follow should l assume the position to which I have been nominated.”

Let’s unpack that. The first thing to know is that justices don’t like to recuse in part because, unlike at the appeals court level, there is no one to replace them if they step aside. And the Supreme Court’s procedure is that individual justices decide for themselves whether a vague standard for recusal set by a 1974 statute is met; there is no appeal if they decide to stay on a case.

That statute says judges and justices should recuse whenever their “impartiality might reasonably be questioned.” So it goes beyond situations where a judge has an actual conflict of interest that would make it unethical to participate in a case; the idea is to preserve public confidence that the judiciary is fair by having judges and justices step aside even when there is only an appearance of a conflict. But the statute does not specifically address whether an observer might reasonably think that a justice like Gorsuch might be biased in favor of a former client (and more!) like Anschutz.

There is not a lot of precedent to examine for guidance about how justices have interpreted the issue of whether cases involving former clients raise an actual or apparent conflict of interest, in part because few modern justices had extensive backgrounds in private practice. But the clearest precedent suggests that it’s acceptable to hear cases involving a former client: Justice Clarence Thomas, who worked as in-house counsel for Monsanto from 1977 to 1979, nevertheless has participated in cases involving that company.

I followed up via Ms. Johnson, saying the roundabout answer, in light of all this, strongly suggested that Judge Gorsuch was leaving himself free to start participating in Anschutz-linked cases at the Supreme Court and requesting clarification if that was not his intended signal. She checked back and provided no further response on his behalf regarding the topic.


Anschutz is an oil and gas mogul who has diversified into a sprawling empire across many different companies and sectors, which inevitably leads to business-related litigation from contract disputes and environmental fights to shareholder lawsuits. He’s also a major donor to Republican campaigns and to a long list of conservative advocacy groups, including the Federalist Society and the Heritage Foundation. They worked together to develop the list of potential Supreme Court nominees from which then-candidate Trump promised conservatives he would pick, putting Gorsuch’s name on it.

Gorsuch has longstanding ties to Anschutz and his network:

  • In the early 2000s, while working at a law firm, Gorsuch represented Anschutz and his companies in a variety of lawsuits and other matters as outside counsel
  • In 2005, after leaving his law firm to join the Bush Justice Department, Gorsuch formed a limited-liability company with two Anschutz lieutenants: Cannon Harvey, a confidante of Anschutz who runs his company’s venture capital arm, and Kevin Conwick, Anschutz’s lead counsel on numerous sports team and stadium development deals through the years. They bought, and still own, a 40-acre vacation property along the Colorado River, where they built a house. Gorsuch has the smallest stake in the company, but county property records direct correspondence about it to him.
  • In 2006, Anschutz helped secure Gorsuch’s appointment to a vacant Colorado seat on the federal appeals court in Denver, first by suggesting to Colorado’s only Republican senator at the time, Wayne Allard, a major recipient of Anschutz-related campaign donations, that Gorsuch was the one.  (Home-state senators, especially of the president’s party, have significant influence over whom a president nominates to judgeships in their states, including veto power through the Senate’s blue-slip process.) With Allard’s blessing, Anschutz then took his case to the White House.
    • UPDATE: This does not appear to be a case of Gorsuch already being in the mix and Anschutz adding his voice to the chorus of praise; rather, there is evidence Anschutz instigated it:
      • On January 10, 2006, the Denver Post reported the names of three people the White House was said to be considering for the pending vacancy; Gorsuch was not one of them. (Its sourcing was anonymous, but the reporter was clearly well sourced in the office of Senator Wayne Allard, and she later had the scoop that the White House had told Allard that Gorsuch was the nominee.)
      • On January 12, Anschutz’s lawyer sent the letter to White House Counsel Harriet Miers “to suggest that the President consider” nominating Gorsuch, saying Anschutz had already spoken to Allard about it. The letter included an introduction to Gorsuch: his resume and a one-page summary of why he’d be a good choice re Colorado roots and Republican credentials.
      • On February 2, Gorsuch was interviewed by Miers and other WHC lawyers.
      • On March 16, Bush approved their recommendation that he make Gorsuch the lead candidate for the nomination, pending a background check.
  • Since becoming a judge, Gorsuch has been a semi-regular keynote speaker at Anschutz’s annual dove hunt parties for fellow elites – speaking there in 2010, 2012 or 2013, and 2015, according to his Senate Judiciary Committee questionnaire

Bipartisan support for C.I.A. general counsel nominee Courtney Simmons Elwood from some national security legal policy veterans

Last night, President Trump announced nominees for two key posts on the national security interagency lawyers group: John J. Sullivan of Mayer Brown to be general counsel of the Department of Defense and Courtney Simmons Elwood of Kellogg Hansen to be general counsel of the Central Intelligence Agency. This post is about the latter.

Elwood was a White House lawyer in the first term of the Bush administration, including as a deputy to Vice President Cheney’s counsel David Addington. In Bush’s second term, she was a counselor to Attorney General Alberto Gonzales. (She is also one half of a D.C. legal power couple — her husband is John Elwood of Vinson & Elkins, who was the top deputy the Office of Legal Counsel in the second term of the Bush administration.)

When the warrantless wiretapping component of Stellarwind came to light in December 2005, she had an exchange of e-mails about whether it was legal with David Kris, who later became assistant attorney general for national security in the Obama administration. That exchange, which came to light in a FOIA case, is rather famous among surveillance nerds.

So it is especially notable that Kris, along with Caroline Krass, who was C.I.A. general counsel in the second term of the Obama administration, is now vouching for Elwood in various quotes compiled by the C.I.A.’s public affairs office. Here are those quotes; I’ve added which administration the speaker worked for in brackets.


Quotes of Support for Courtney Elwood, Nominee for CIA General Counsel


C.I.A. Director Mike Pompeo [Trump administration]

  • “Ms. Elwood understands the CIA’s mission and critical role of the rule of law in achieving that mission,” said CIA Director Mike Pompeo.  “The warriors at CIA look forward to her joining in our mission to be the premier espionage agency in the world.”

Wan Kim, former Assistant Attorney General for the Justice Department’s Civil Rights Division [Bush administration]

  • “Courtney Elwood is a careful, brilliant, and highly accomplished lawyer.  I have known Courtney for more than 20 years, and worked with her in both private practice and the government.  She has proved time and time again that she is dedicated to the rule of law, and I have no doubt that she will serve the country exceptionally well as General Counsel for the CIA,” said Wan Kim, former Assistant Attorney General for the Justice Department’s Civil Rights Division.

David Kris, former Assistant Attorney General for National Security [Obama administration]

  • “Courtney Elwood and I worked together during the administration of President George W. Bush, including in the immediate aftermath of the September 11attacks.  I know her to be a first-class lawyer with tremendous acumen, judgment, and respect for the rule of law.  I am delighted that she has been nominated for General Counsel of the CIA.  The agency and the country will both benefit immensely from her service,” said David Kris, former Assistant Attorney General for National Security.

Caroline Krass, former CIA General Counsel [Obama administration]

  • “Courtney is an excellent choice for this demanding position. She is intelligent and level-headed and will be inheriting a highly experienced and dedicated team,” said Caroline Krass, former CIA General Counsel.

Ben Powell, former General Counsel to the Director of National Intelligence and Former Associate Counsel and Special Assistant to the President  [Bush administration]

  • “I have been a colleague of Courtney Simmons Elwood for almost two decades during both government service and in the private sector.  She is one of the finest lawyers of her generation, known for her intellect, integrity, and judgment.  Her broad legal experience at the highest levels of the government and private sector provides an excellent foundation for service as General Counsel of the CIA.  The men and women of the CIA will be well-served by having a General Counsel with the wisdom, experience, dedication, and judgment of Ms. Elwood,” said Ben Powell, Former General Counsel to the Director of National Intelligence and Former Associate Counsel and Special Assistant to the President.

Ken Wainstein, former Homeland Security Advisor to the President and former Assistant Attorney General for National Security [Bush administration]

  • “Courtney Elwood is an outstanding choice for CIA General Counsel.  An exceptional lawyer with extensive experience in the private sector and government, she has a well-deserved reputation for professionalism, integrity and commitment to the rule of law.  The Agency could not ask for a better lawyer and counselor to help guide it through the many national security challenges facing our country today,” said Kenneth L. Wainstein, former Homeland Security