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.

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).