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.

Long-Serving Intelligence Executive: Sure, Government Has Been Thoroughly Pawned But What about Ordinary Citizens?

Three months after Obama rolled out a cybersecurity initiative backed by a piece in the WSJ, former Deputy Director of Defense Intelligence David Shedd has decided to critique it (the 3 month delay might have something to do with the fact that, in the interim, Shedd was getting beat up by DOD Inspector General over having created his own private limousine service).

In his op-ed, Shedd questions Obama’s embrace of a public-private partnership. He makes a good point that such government initiatives rely on voluntary participation. He insinuates that Obama ignores the contributions of Apple because of the fight over encryption.

How odd that the president didn’t even mention Apple among the other leading technology firms when it comes to cybersecurity. Apple, America’s (and the world’s) largest and most valuable technology firm, has led the industry in securing its products, a claim the others listed can’t stand by. But of course the president can’t mention Apple as a shining example of American cybersecurity, because his administration is entrenched in a political battle with the company over encryption.

It’s a fair dig. Except that’s the kind of anachronism I wouldn’t expect from a lifetime spook. It is true that Jim Comey was on the war path with Apple since the company made iPhone encryption standard in fall 2014. But things didn’t start ratcheting up until February 16, when DOJ got an All Writs Act to make Apple rewrite their operating system, after Obama wrote the op-ed that didn’t mention Apple.

Shedd then mocks Obama’s efforts to introduce more flexibility in hiring cybersecurity people. Here’s what Obama said:

We’ll do more—including offering scholarships and forgiving student loans—to recruit the best talent from Silicon Valley and across the private sector. We’ll even let them wear jeans to the office. I want this generation of innovators to know that if they really want to have an impact, they can help change how their government interacts with and serves the American people in the 21st century.

Here’s what Shedd (he of the personal limousine service) said:

While this proposal rightly addresses the need to recruit great talent, does the administration really think the ability to wear jeans is going to sway the best and brightest away from the pay in Silicon Valley?

Perhaps we’re all missing the metaphor of “wearing jeans” for smoking pot. But the truth is some people aren’t motivated primarily by personal limousine services; they would like to help the government. One real barrier to hiring talent — people like Ashkan Soltani — is something Shedd has been a very big player in: security clearances.

Which gets me to my real confusion about this piece.

First, even before he talks about how much better the tech industry, at least, is than the government on these issues, Shedd complains that there’s nothing in Obama’s policy for “everyday citizens or industry.”

It’s all well and good to talk about protecting U.S. innovation and giving every American a level of online security. But the president fails to suggest even a single solution that would impact everyday citizens or industry.

Then he lays out how absolutely incompetent the government has been in protecting itself.

[C]onsidering the fact that multiple government agencies, as well as the Justice and Homeland Security departments, have faced significant cyberattacks, this is an odd claim to make.

The most egregious breach took place less than a year ago, when the Office of Personnel Management suffered a huge data breach that continues to impact tens of millions of federal workers and contractors, including those with access to America’s most sensitive secrets. No one was fired over the incident. Is that accountability? In late February, the office’s chief information officer resigned just two days before having to testify before Congress.

The administration’s failed record in cybersecurity extends beyond the breaches on government systems. In a recent score card released by the House Oversight and Government Reform Committee, the majority of federal agencies received subpar, if not failing, grades on their cybersecurity posture.

Among the worst was the Department of Energy, which is charged with protecting our nation’s nuclear technology. Given that the Obama administration had seven years to meet its cybersecurity obligations, why should the American people believe anything will change with a new initiative?

Now, if the government is a cybersecurity sieve, then why is Shedd bitching that there’s nothing in Obama’s policy for “ordinary citizens” or the private industry companies that aren’t getting pawned? Shouldn’t locking down the nation’s nuclear secrets — a point I’ve emphasized — be a higher priority than saving Target from liability when its customers get their credit card data stolen (besides the fact, for customers who can afford an iPhone, as Shedd pointed out, Apple is already doing something)? In a purportedly capitalist society, should the government free private industry of all responsibility for its own security?

Crazier still, Shedd — who worked in Bush’s National Security Council until 2005, then moved to Director of National Intelligence, then in 2010 moved to DIA — is bitching that no one (aside from Katherine Archuleta) got fired for the OPM hack. In several of those positions, Shedd was in a place where he should have been one of the people asking why the security clearance data for 21 million people was readily available to be hacked — though no one in his immediate vicinity thought to ask those questions until 2013 and even then not including the non-intelligence agencies that might be CI problems. He was in a position when he may have — probably should have — reviewed some of the underlying database consolidation of clearance databases, including (at ODNI) identifying them as a counterintelligence threat.

A report published by the Office of the Director of National Intelligence provides some insight: In order to report security clearance volume levels, the National Counterintelligence and Security Center’s Special Security Directorate (SSD) “compiled and processed data from the three primary security clearance record repositories: ODNI’s Scattered Castles (SC); DoD’s Joint Personnel Adjudication System (JPAS); and the Office of Personnel Management’s (OPM) Central Verification System (CVS). To fulfill specific reporting requirements of the FY 2010 IAA, the SSD issued a special data call to the seven IC agencies with delegated authority to conduct investigations or adjudications.” The purpose of the data call was to consolidate security clearance data.

It’s probably not Shedd’s fault personally OPM got hacked, but some of the people who directly worked for him along the way may well bear responsibility.

Moreover, when he bitches about how so little has been accomplished in Obama’s 7 years, it ought to raise questions about why nothing got accomplished in his own decade of service in a position when he might have done something. Perhaps he spent years fighting with Obama (and before him Bush) to do something about the government’s cybersecurity, but if so, that’s what he should be talking about, not that Obama wants to make it easier for hackers to wear jeans to work.

Some of Shedd’s complaints are spot on. Just not coming, as they do, from someone who spent a decade in a position to address cybersecurity himself.