Charlie Savage

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)

 

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:

 

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)

 

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).

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:

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.

Snowden Hong Kong Icon Mira Hotel Documents

 

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.

Edward Jay Epstein wrote a second letter to the New York Review of Books and I wrote another response. Here they are.

(Here’s my original review and here’s his first letter and my first response.)

 

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.

THE RECUSAL ISSUE, IN DEPTH

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.

BACKGROUND:

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

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

Late yesterday, Judge J. Paul Oetken of the Southern District of New York handed down an important ruling in a Freedom of Information Act lawsuit the Times and I have been pursuing over memos about the criminal investigation into the C.I.A. torture program. The memos were written by Assistant U.S. Attorney John Durham, who oversaw the investigation, to then-Attorney General Eric Holder. They compiled his investigative findings and his recommendations. No charges were brought as a result of the case.

Durham was originally appointed in 2008 by then-Attorney General Michael Mukasey to look into the C.I.A.’s destruction of videotapes of interrogation sessions, and in 2009 Holder expanded his mandate to investigate whether the abuses of detainees that went beyond techniques the Bush Justice Department had blessed as lawful broke any laws. Durham eventually recommended no charges be brought, and his investigation ended in 2012.

We fought the lawsuit in stages. In September 2015, Judge Oetken delivered a mixed preliminary verdict. He ruled that the government could continue to withhold the the F.B.I.’s “302 reports” summarizing witness interviews and Durham’s reports about the videotape destruction, but said that the government must disclose, at least in part, Durham’s reports about detainee abuses. His reasoning turned on the fact that Holder extensively cited and expressly relied upon the latter in public statements discussing the decision not to bring charges, so the government had waived its right, under an exception to FOIA for predecisional, deliberative, and attorney-client privileged information, to keep it secret.

We then fought another round over other exceptions to FOIA. In his new ruling, Judge Oetken delivered another mixed verdict, delivering a partial victory to the government and a partial victory to us. For example a recommendation memo and parts of the declination memo fall outside the exception for secret grand jury materials, but other exemptions, including for classified information (like countries where black site prisons were located) and material that would raise personal privacy issues (like identities of witnesses and potential targets) go to the government.

Because the exceptions he said did apply to certain materials may be overlapping, it is not clear what portions of the memos the government would make public if it complied with his ruling. However, it would not be surprising if the Justice Department instead appeals to the Second Circuit.

The Times’ lawyer, David McCraw, is handling the FOIA lawsuit.

The last iteration of the Obama administration’s ambivalent  “look forward not back” attitude toward the defunct Bush-era CIA torture program — banning it, but not investigating what happened — was the Obama Justice Department’s resistance to an effort to get a copy of the full, still-classified Senate Select Committee on Intelligence report about that program deposited with the judiciary for safekeeping during the Trump years. But as the Obama era came to an end, two Federal District Court judges for the District of Columbia ordered the executive branch to provide a copy of the report to the court’s security officer, and today, on the deadline set by one of them, the Trump administration complied rather than appeal.