What Price Victory?

Virtually the entire political class has now united to defeat Donald Trump, with Morning Joe today staging a Michael Hayden appearance that served largely to allow Scarborough to tell the story of Trump asking three times in a foreign policy briefing why the US couldn’t use its nukes. As Dan Drezner pointed out on Twitter, Scarborough says the event happened months ago — when the primary was still going on — but has just now staged its telling.

Beating Donald Trump is important. He’s a racist who aims to win by promising white working class people they can resume persecuting people of color again, and he is dangerously inconsistent. That said, he does want to spend lots on infrastructure and protect workers from the ravages of globalization, something often forgotten in depictions of him as entirely policy free.

But the transpartisan obsession with beating Trump has largely applauded two developments that, for liberals, for democrats, for those who believe in peace, for progressives, should be a worry.

First, the Neocon establishment has come out in enthusiastic support for Clinton, with ideologue Eliot Cohen orchestrating serial efforts (one that even includes John Yoo!!) to oppose Trump. They point to Trump’s erratic nature and more recently the theories of Putin’s influence. They do so even in the face of a report that Paul Manafort, through whom any Putin influence would be managed, is checking out.

I exchanged messages Tuesday evening with a longtime ally of Trump campaign manager Paul Manafort, whom I asked about who was calling the shots in the campaign. The response indicated that Manafort, a veteran of Republican politics brought in this spring for the transition from primaries to the general election, has lost control over his candidate.

“Manafort not challenging (Trump) anymore,” Manafort’s ally wrote. “Mailing it in. Staff suicidal.”

I’m getting whiplash following the Manchurian Trump stories. Maybe the ones suggesting Bill Clinton was behind the Trump run are the true ones after all.

And even while the focus has been on Russia’s alleged influence with Trump, there has been no focus on Hillary’s unquestioning support of Saudi Arabia (the country that had ties to 9/11) and Israel. Or on Hillary’s equally troubling policy proposals, such as starting a No Fly Zone over Russian planes.  As Will Bunch noted in a great column, Democrats have become the party that shuns people who chant No More War.

The delegates didn’t hear from an Andrew Bacevich or the equivalent of James Madison, but they did get Panetta, who — as noted in this excellent analysis — has supported expanded war powers for the White House, failed to push for real accountability on Bush-era torture, and once suggested that “a 30-year war” will be needed against terrorism. Was it really rude for some of the DNC delegates to chant “no more war!” during Panetta’s speech? Or were some citizens desperately trying to be heard with a different point of view, in a nation so eager to squelch any public debate?

It should be a scandal that the United States drops bombs from flying death robots or our obscenely expensive military jets over countries like Libya, swaths of Africa, or Syria based only on a 15-year-old congressional resolution passed after an attack carried out mostly by Saudi Arabians loyal to a terrorist group that barely exists in 2016. But we’re afraid of any frank discussion of that, or the recent admission by the Obama administration that U.S. military actions in nations with which we’re not technically at war have killed 116 innocent civilians. That’s a number that experts find ridiculously low, by the way, and doesn’t as include as many as 85 Syrian civilians who were killed in late July by a U.S. airstrike — a story that was all but ignored in the media. Even if you strongly believe that such collateral damage is necessary to defeat international terrorism, chanting “USA! USA!” to support militarism is both jingoistic and crudely callous toward the dead.

Not only has Hillary gotten the support of the people who brought us into Iraq based on a lie (she told her own little stretchers to get us into Libya), but we’re now drowning out any voice for peace.

Then there’s the parade of heinous billionaires Hillary has rolled out, with Mark Cuban, Mike Bloomberg, and now Meg Whitman. NYT’s coverage of Whitman’s announcement emphasizes that Hillary has been courting Republican billionaires since before she finalized the nomination and that Hillary’s pick of the pro-TPP pro-Wall Street Tim Kaine is what sealed the deal for Whitman.

Whitman, who said she would remain a Republican, brings with her a considerable network of contributors, some of whom she said were open to giving to Mrs. Clinton. She said she was willing to campaign for Mrs. Clinton, said she would do her best to gather checks for her campaign and indicated she would personally give to both Mrs. Clinton and her affiliated “super PACs.” An aide to Ms. Whitman said she would personally give at least an amount in the “mid-six figures” to the Clinton effort.

While Democrats openly appealed at their convention last week to Republicans uneasy with Mr. Trump, Mrs. Clinton and her top supporters have been making a similar cross-party pitch in private since before the Democratic nomination fight even came to its conclusion.

[snip]

She said she had told Mrs. Clinton that she wanted to see the two parties’ conventions and assess the running mates that each nominee chose before making her decision. When Mrs. Clinton selected Senator Tim Kaine of Virginia, a consensus-oriented figure, “that was a positive for me,” Ms. Whitman said.

Whitman’s nod to Kaine is of particular concern to me, as Democrats downplayed his anti-choice and pro-business policies, at least in public, until after the convention. Now, if anything happens to Hillary (who has some dangerously unhinged enemies), we’ll basically have a moderate Republican running the country.

It’s not just that Hillary has secretly been courting oligarchs since before she cemented the nomination. It’s that her post-convention politicking has focused on it, as if the approval of oligarchs is what it will take to win in midwest swing states.

The guy who will likely become Majority Leader is even more aggressively pursuing typical Republican voters (though this view — admittedly filtered through the potentially inaccurate National Review — has some huge logical contradictions, not to mention an odd idea of what it would take for Democrats to continue to win Illinois).

“No guarantees, there never are, but the odds are more like than not that we will take back the Senate,” Sen. Chuck Schumer said at a forum sponsored by the Washington Post Thursday afternoon. Schumer will be the next majority or minority leader of the Senate Democrats, depending upon how November unfolds. He suggested that the electorate’s sense of economic gloom was actually working to his party’s advantage: “The electorate is moving in a more Democratic direction. When middle class incomes decline, people tend to move in a more progressive direction.”

Schumer’s optimism is driven more by national demographics than by the specific traits of his candidates. He contends that Millennials, or voters aged 18 to 35, will be the largest age group voting in this year’s electorate, even if they don’t turn out in massive numbers.

“The number one factor in whether we retake the Senate is whether Hillary Clinton does well, and I think she’s going to do really well,” Schumer says of his former fellow New York senator. He notes that Senate Majority Leader Mitch McConnell urged Senate Republicans in difficult races to localize their elections, rather than get too tied to Trump’s positions and comments and scoffs, “Sorry, Mitch, this is a national election if there ever was one.”

At least publicly, Schumer has no worries about his party’s dwindling fortunes among working-class white voters. “For every blue-collar Democrat we lose in western Pennsylvania, we will pick up two moderate Republicans in the suburbs in Philadelphia, and you can repeat that in Ohio and Illinois and Wisconsin.”

Democrats, it appears, want to become the party of the Republican soccer mom, which may work well with the bellicose warmongering, but which seems to view economic malaise as an opportunity rather than a problem.

So yeah, by all means, let’s beat the orange crazy man.

But let’s also be cognizant of the more politically palatable craziness that gets embraced in the process.

In 2010, DOJ Was Stalling Gang of Four Member Silvestre Reyes Over Common Commercial Services Memo

As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its lawsuit.

According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about the memo even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about the memo. On October 5, Ron Weich wrote Reyes,

We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.

In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”

That seems like a problem to me.

It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.

 

DOJ Confirms One or More Agencies Acted Consistent with John Yoo’s Crummy Opinion

There’s a whiff of panic in DOJ’s response to ACLU’s latest brief in the common commercial services OLC memo, which was submitted last Thursday. They really don’t want to release this memo.

As you recall, this is a memo Ron Wyden has been hinting about forever, stating that it interprets the law other than most people understand it to me. After I wrote about it a bunch of times and pointed out it was apparently closely related to cybersecurity, ACLU finally showed some interest and FOIAed, then sued, for it. In March, DOJ made some silly (but typical) claims about it, including that ACLU had already tried but failed to get the memo as part of their suit for Stellar Wind documents (which got combined with EPIC’s suit for electronic surveillance documents). In response, Ron Wyden wrote a letter to Attorney General Loretta Lynch, noting a lie DOJ made in DOJ’s filings in the case, followed by an amicus brief asking the judge in the case to read the secret appendix to the letter he wrote to Lynch. In it, Wyden complained that DOJ wouldn’t let him read his secret declaration submitted in the case (making it clear they’re being kept secret for strategic reasons more than sources and methods), but asking that the court read his own appendix without saying what was in it.

Which brings us to last week’s response.

DOJ is relying on an opinion the 2nd circuit released last year in ACLU’s Awlaki drone memo case that found that if a significant delay passed between the time an opinion was issued and executive branch officials spoke publicly about it — as passed between the time someone wrote a memo for President Bush’s “close legal advisor” in 2002 about drone killings (potentially of American citizens) and the time Executive branch officials stopped hiding the fact they were planning on drone-killing an American citizen in 2010, then the government can still hide the memo.(I guess we’re not allowed to learn that Kamal Derwish was intentionally, not incidentally, drone-killed in 2002?)

This is, in my understanding, narrower protection for documents withheld under the b5 deliberative privilege exemption than exists in the DC Circuit, especially given that the 2nd circuit forced the government to turn over the Awlaki memos because they had been acknowledged.

In other words, they’re trying to use that 2nd circuit opinion to avoid releasing this memo.

To do that they’re making two key arguments that, in their effort to keep the memo secret, end up revealing a fair amount they’re trying to keep secret. First, they’re arguing (as they did earlier) that the ACLU has already had a shot at getting this memo (in an earlier lawsuit for memos relating to Stellar Wind) and lost.

There’s just one problem with that. As I noted earlier, the ACLU’s suit got joined with EPIC’s, but they asked for different things. ACLU asked for Stellar Wind documents, whereas EPIC asked more broadly for electronic surveillance ones. So when the ACLU argued for it, they were assuming it was Stellar Wind, not something that now appears to (also) relate to cybersecurity.

Indeed, the government suggests the ACLU shouldn’t assume this is a “Terrorist Surveillance Program” document.

7 Plaintiffs conclude that the OLC memorandum at issue here must relate to the Terrorist Surveillance Program and the reauthorization of that program because the attorney who authored the memorandum also authored memoranda on the Terrorist Surveillance Program. Pls.’ Opp. at 10. The fact that two OLC memoranda share an author of course establishes nothing about the documents’ contents, nature, purpose, or effect.

Suggesting (though not stating) the memo is not about TSP is not the same as saying it is not about Stellar Wind or the larger dragnets Bush had going on. But it should mean ACLU gets another shot at it, since they were looking only for SW documents the last time.

Which is interesting given the way DOJ argues, much more extensively, that this memo does not amount to working law. It starts by suggesting Wyden’s filing arguing a “key assertion” in the government’s briefs is wrong.

3 Senator Wyden asks the Court to review a classified attachment to a letter he sent Attorney General Loretta Lynch in support of his claim that a “key assertion” in the Government’s motion papers is “inaccurate.” Amicus Br. at 4. The Government will make the classified attachment available for the Court’s review ex parte and in camera. For the reasons explained in this memorandum, however, the Senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the “working law” doctrine.

In doing so, it reveals (what we already expected but which Wyden, but apparently not DOJ, was discreet enough not to say publicly) that the government did whatever this John Yoo memo said government could do.

But, it argues (relying on both the DC and 2nd circuit opinions on this) that just because the government did the same thing a memo said would be legal (such as, say, drone-killing a US person with no due process), it doesn’t mean they relied on the memo’s advice when they took that action.

The mere fact that an agency “relies” on an OLC legal advice memorandum, by acting in a manner that is consistent with the advice, Pls.’ Opp. at 11, does not make it “working law.” OLC memoranda fundamentally lack the essential ingredient of “working law”: they do not establish agency policy. See New York Times, 806 F.3d at 687; Brennan Center, 697 F.3d at 203; EFF, 739 F.3d at 10. It is the agency, and not OLC (or any other legal adviser), that has the authority to establish agency policy. If OLC advises that a contemplated policy action is lawful, and the agency considers the opinion and elects to take the action, that does not mean that the advice becomes the policy of that agency. It remains legal advice. 5

5 Nor could the fact that any agency elects to engage in conduct consistent with what an OLC opinion has advised is lawful possibly constitute adoption of that legal advice, because taking such action does not show the requisite express adoption of both the reasoning and conclusion of OLC’s legal advice. See Brennan Center, 697 F.3d at 206; Wood, 432 F.3d at 84; La Raza, 411 F.3d at 358.

Effectively, DOJ is saying that John Yoo wrote another stupid memo just weeks before he left, the government took the action described in the stupid memo, but from that the courts should not assume that the government took Yoo’s advice, this time.

One reason they’re suggesting this isn’t TSP (which is not the same as saying it’s not Stellar Wind) is because it would mean the government did not (in 2005, when Bush admitted to a subset of things called TSP) confirm this action in the same way Obama officials danced around hailing that they had killed Anwar al-Awlaki, which led to us getting copies of the memos used to justify killing him.

In short, the government followed Yoo’s advice, just without admitting they were following his shitty logic again.

Domestic Collection and Stellar Wind

I’m in the middle of comparing John Yoo’s May 17, 2002 letter to Colleen Kollar-Kotelly (which is largely the November 2, 2001 justification he wrote for Stellar Wind) with Jack Goldsmith’s May 6, 2004 memo on Stellar Wind, which reined in some aspects of Stellar Wind. And I realized something about the authorization process.

On page 17 of his memo, Goldsmith describes the previous opinions issued by OLC. The discussion is largely redacted, but it does describe say the October 4, 2001 memo “evaluated the legality of a hypothetical electronic surveillance program,” whereas the November 2, 2001 memo “examined the authorities granted by the President in the November 2, 2001 Authorization of STELLAR WIND and concluded that they were lawful.”

Already, that’s an interesting assertion given that the Yoo letter doesn’t do that entirely. First, at least in the letter to Kollar-Kotelly, Yoo also treated the program as hypothetical.

Electronic surveillance techniques would be part of this effort. The President would order warrantless surveillance in order to gather intelligence that would be used to prevent and deter future attacks on the United States. Given that the September 11 attacks were launched and carried out from within the United States itself, an effective surveillance program might include individuals and communications within the continental United States. This would be novel in two respects. Without access to any non-public sources, it is our understanding that generally the National Security Agency (NSA) only conducts electronic surveillance outside the United States that do not involve United States persons. Usually, surveillance of communications by United States persons within the unites states is conducted by the FBI pursuant to a warrant obtained under the Foreign Intelligence Surveillance Act (“FISA”). Second, interception could include electronic messages carried through the internet, which again could include communications within the United States involving United States persons. Currently, it is our understanding that neither the NSA nor law enforcement conducts broad monitoring of electronic communications in this matter within the United States, without specific authorization under FISA.

[snip]

Thus, for example, all communications between United States persons, whether in the United States or not, and individuals in [redacted–likely Afghanistan] might be intercepted. The President might direct the NSA to intercept communications between suspected terrorists, even if one of the parties is a United States person and the communication takes place between the United States and abroad. The non-content portion of electronic mail communications also might be intercepted, even if one of parties is within the United States, or one or both of the parties are non-citizen U.S. persons (i.e., a permanent resident alien). Such operations would expand the NSA’s functions beyond the monitoring only of international communications of non-U.S. persons. [my emphasis]

Importantly, these hypothetical descriptions come from the section of Yoo’s letter before it appears to begin tracking his earlier memo closely. So it’s unclear whether this description of Stellar Wind matches the one in the November 2 memo. It’s certainly possible that Yoo gave an incomplete version of what he had in the earlier memo or even pulled in (hypothetical) language from the October 4 memo. It’s possible, too, that language on domestic content collection reflected a retroactive review Yoo did of the first authorization. (An extended discussion of how Yoo’s early memos track the Authorizations — including discussion of another hypothetical memo Yoo wrote on September 17 — starts at PDF 361.)

Of particular interest, this hypothetical description includes the possibility of intercepting entirely domestic Internet communications (see emphasized language). We know — from the unredacted NSA Stellar Wind IG Report and even from the redacted Joint IG Report — that was something included in the first presidential Authorization, but not the subsequent ones.

The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for domestic collection.

We also know NSA did collect some domestic collection — on about 3,000 selectors, possibly triggered to non-US persons within the US — at least until Stellar Wind got transitioned to FISA in 2009.

This is a minor, but potentially important one. Yoo was writing hypothetical authorizations for stuff the NSA later pretended not to be authorized to do, but was doing. Those earlier hypothetical authorizations didn’t go away. And therefore, no matter what the authorizations said, there’d still be that authorization sitting there.

The Obama Administration Almost Doubled Down on Yoo’s Illegality

Over at JustSecurity the other day, ACLU’s Patrick Toomey argued that the Administration’s current interpretation of FISA — especially its embrace of upstream surveillance — means the Obama Administration has gone beyond John Yoo’s thinking on surveillance as exhibited in his May 17, 2002 letter to FISC judge Colleen Kollar-Kotelly.

Perhaps most remarkably, however, the Obama Justice Department has pressed legal theories even more expansive and extreme than Yoo himself was willing to embrace. Yoo rounded out his Stellar Wind memo with an effort to reassure Judge Kollar-Kotelly that the government’s legal interpretation had limits, saying: “Just to be clear in conclusion. We are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of communication.” But that is essentially the power the NSA claims today when it conducts Upstream surveillance of Americans’ Internet communications. The NSA has installed surveillance equipment at numerous chokepoints on the Internet backbone, and it is using that equipment to search the contents of communications entering or leaving the country in bulk. As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

I’m not sure I’m convinced. After all, the Administration claims it is not examining the contents of all international letters, but rather only looking at those where selected identifiers show up in data packets. Yeah, I know it’s a bullshit argument, but they pretend that’s not searching the contents, really. Moreover we have substantial reason to believe they were doing (some) of this anyway.

But there is a curious relationship between a claim Yoo made in his letter and the Obama Administration’s views on FISA.

In the letter, Yoo writes,

FISA purports to be the exclusive means for conducting electronic surveillance for foreign intelligence, … FISA establishes criminal and civil sanctions for anyone who engages in electronic surveillance, under color of law, except as authorized by statute, warrant, or court order. 50 U.S.C. § 1809-10. It might be thought, therefore, that a warrantless surveillance program, even if undertaken to protect the national security, would violate FISA’s criminal and civil liability provisions.

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities. FISA can regulate foreign intelligence surveillance only to the extent permitted by the Constitution’s enumeration of congressional authority and the separation of powers.

[snip]

[A]s we explained to Congress during the passage of the Patriot Act, the ultimate test of whether the government may engage in foreign surveillance is whether the government’s conduct is consistent with the Fourth Amendment, not whether it meets FISA.

This is especially the case where, as here, the executive branch possess [sic] the inherent constitutional power to conduct warrantless searches for national security purposes.

Effectively, Yoo is saying that even if they blow off FISA, they will be immune from the penalties under 50 USC §1809-10 so long as what they were doing fulfilled the Fourth Amendment, including an expansive reading of special needs that Yoo lays out in his memo. (Note, this was explained in the DOJ Stellar Wind IG Report — starting at PDF 47 — but this letter makes it more clear.)

As a reminder, on two occasions, John Bates disagreed with that interpretation, first in 2010 when he ruled NSA couldn’t continue to access the five years of data it overcollected under the PRTT Internet dragnet, and then again in 2011 when he said the government couldn’t disseminate the illegally collected upstream data (and Vaughn Walker disagreed in a series of rulings in the Al Haramain case in 2010, though the 9th Circuit partially overturned that in 2012). We know, thanks to Snowden, that the government considered appealing the order. And in his summary of the resolution of this issue, Bates made it clear that the government’s first response was to say that limits on illegally collected data don’t apply.

However, issues remained with respect to the past upstream collection residing in NSA’s databases. Because NSA’s upstream collection almost certainly included at least some acquisitions constituting “electronic surveillance” within the meaning of 50 U.S.C. § 1801 (f), any overcollection resulting from the government’s misrepresentation of the scope of that collection implicates 50 U.S.C. § 1809(a)(2). Section 1809(a)(2) makes it a crime to “disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. The Court therefore directed the government to make a written submission addressing the applicability of Section 1809(a), which the government did on November 22, 2011. See [redacted — probably a reference to Bates’ July 2010 opinion], Oct. 13, 2011 Briefing Order, and Government’s Response to the Court’s Briefing Order of Oct. 13, 2011 (arguing that Section 1809(a)(2) does not apply).

Ultimately, though, the government not only (said it) destroyed the illegal upstream data, but claims to have destroyed all its PRTT data in a big rush (so big a rush it didn’t have time to let NSA’s IG certify the intake collection of data).

And it replaced that PRTT program by searching data under SPCMA it claimed to have collected legally … somewhere.

I don’t pretend to understand precisely went on in those few weeks in 2011, though it’s clear that Obama’s Administration at least considered standing by the spirit of Yoo’s claim, even though the opinion itself had been withdrawn.

But I do know that at least through 2009, the government treated all its PRTT and Section 215 data as EO 12333 data, and in fact the providers appear not to have distinguished it either (more on this in upcoming days, hopefully). That is, it was collecting data with FISC sanction that it treated as data it collected outside of FISC sanction (that is, under EO 12333), and it was ignoring the rules FISC imposed.

Which leads me to wonder whether the government still doesn’t believe it remains immune from penalties laid out in FISA.

John Yoo’s Two Justifications for Stellar Wind

Because I’m a hopeless geek, I want to compare the what we can discern of the November 2, 2001 memo John Yoo wrote to authorized Stellar Wind with the letter he showed FISA Presiding Judge Colleen Kollar-Kotelly on May 17, 2002. The former is almost entirely redacted. But as I’ll show, the two appear to be substantially the same except for small variations within paragraphs (which possibly may reflect no more than citations). The biggest difference is that Yoo’s memo appears to have two pages of content not present in the letter to Kollar-Kotelly.

What follows is a comparison of every unredacted passage in the Yoo memo, every one of which appear in exactly the same form in the letter he wrote to Kollar-Kotelly.

The first unredacted line in Yoo’s memo — distinguishing between “electronic surveillance” covered by FISA and “warrantless searches” the President can authorize — appears in this paragraph in the letter.

The line appears on page 7 of Yoo’s memo, but page 5 of his letter (which also includes some foofy introductory language for Kollar-Kotelly). That says there’s already 2 pages of information in Yoo’s memo that doesn’t appear in the letter. Yoo’s description of the surveillance program in the letter to Kollar-Kotelly is actually fairly short (and written entirely in the conditional voice), so there may be more of that in the actual memo. Also, anything that didn’t involve electronic surveillance — such as the collection of financial data — would not necessarily be relevant to FISC. But as I argue below, it’s also possible Yoo made claims about executive power in those two paragraphs that he rewrote as a two-page addition to for Kollar-Kotelly’s benefit.

The next unredacted passage in the memo consists of the first sentences of these two paragraphs.

They appear on page 9 of Yoo’s memo and page 7 of the letter, and it appears that the space in between the two is consistent — suggesting that the interim content remains the same.

The next unredacted passage appears on page 12 of Yoo’s memo, page 10 of the letter.

While the general pagination still seems to be roughly tracking (again, suggesting the interim content is at least similar), the spacing of this paragraph is clearly different (note how the sentence begins in a different place in the column), suggesting Yoo may have made an even stronger defense of inherent authority in his memo, or perhaps that OLC has precedents for such a claim that Yoo thought inappropriate to share with the FISC. It’s possible this and later paragraph spacing differences arise from classification marks at the beginning of each paragraph, except the passages from the beginning of paragraphs seem to match up more closely than those from the middle of them.

The next unredacted passage, on page 17 of Yoo’s memo and 15 of the letter, extend the claim that Congress can’t limit the President’s use of pen registers used to defend the nation. That’s followed closely by Yoo’s shift to arguing that intelligence gathering “in direct support” of military operations does not trigger the Fourth Amendment.

Again, the pagination of both line up. But as with the discussion of Congress’ ability to impose limitations with FISA, the discussion on pen registers appears to have different spacing within the paragraph.

This citation, from the 1995 Supreme Court decision in Vernonia School District, is the next unredacted passage.

Here, the pagination of the two documents remains close — the line appears on the bottom of page 19 in Yoo’s memo but near the top of page 18 in the letter — but it’s possible there’s somewhat less content in the memo at this point than the letter. And again, the spacing within the paragraph seems to be off slightly.

Two pages later in both documents (page 21 of the memo and 19 of the letter), the quote from Haig v Agee,  which the executive always uses to assert expansive powers for national security, appears.

Though once again, the spacing within the paragraph appears slightly different.

That’s the last unredacted passage of Yoo’s memo. The memo released to the ACLU under its EO 12333 FOIA reveals there are 3 more pages to Yoo’s memo (for a total of 24). That would suggest that the remaining body of the documents were, at least, close in length.

That is what the letter has as well. But in addition to the letter, DOJ released an unexplained 2 page description of “Authority for Warrantless National Security Searches” that does not appear in the Yoo memo as far as we know. So the Kollar-Kotelly letter is 22 pages, plus the 2 page addendum, whereas the memo is 24 pages, apparently without it.

Which says one obvious explanation for the difference in length is that Yoo replaced two pages of content from his memo with the two page Authority document.

Half the two-page Authority document deals with citations in Keith, the Supreme Court decision requiring warrants for even domestic security wiretaps; it effectively does this to suggest Keith was more supportive of warrantless wiretapping than it was. The other page treats more recent decisions, all except Congress’ decision to include physical searches in FISA, pre-dating FISA. Some of these citations are even repeated in the letter (so presumably in the memo). It seems, then, that these two pages are a special interpretation of past actions to interpret them as saying something different than they do. (As I’ll note in a future post, the Keith gymnastics are particularly important.)

But I’ll add one more thing. The fact that Yoo had claimed the Executive could ignore the content of EO 12333 first became public when Sheldon Whitehouse got language from the memo declassified in 2007 and read it on the Senate floor (he specifically refers to memos, not letter, so it’s presumably from the November 2, 2001 memo). But Whitehouse also got two more claims declassified at the time:

• The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
• The Department of Justice is bound by the President’s legal determinations.

I believe the second claim — that DOJ is bound by the President’s legal determinations — refers to a note that Alberto Gonzales sent DOJ after the hospital confrontation. But the first — that the President can determine what is a lawful exercise of his own Article II authority — has not (as far as I can think of) since been made public. So I think it’s possible that the two pages of the memo that don’t exist in the letter might make such a claim (which would in turn justify the October 4, 2001 decisions to authorize the program). In which case, when Yoo was rewriting it to make it palatable to a judge who otherwise might balk, simply rewrote those two pages to make them appear reasonable so long as no one got to review it closely. That’s just a guess, but we know we’re looking for 2 pages of content written by Yoo in 2001, and I believe we’re still looking for the claim that the President can determine whether his own actions are legal, so it’s possible the claim is in those two pages. And some of the later Article II claims that appear in the letter (and the memo) would make more sense if Yoo had made such a case for Article II authority in those missing two pages.

If I’m right, though, it would suggest that DOJ’s claim that it cannot release the November 2, 2001 memo is an effort to ensure those two pages don’t become public, because all the rest has already been made public (in only slightly redacted form).