Tag: Office of Legal Counsel

Harold Koh and the Temptations of Power

So for three months now, we’ve been at war in a country that the president’s own secretary of defense admits is “not a vital interest for the United States.” Turns out, it’s also a war that the president’s own attorney general believes to be illegal.

That’s what I get from Charlie Savage’s recent reporting on how the White House “forum-shopped” its way to its current position on the War Powers Resolution, to wit, you’re not engaged in “hostilities” if you’re hitting someone but they can’t hit you back.

As the WPR’s 60-day deadline approached, the Pentagon’s general counsel and, more importantly, the head of the president’s Office of Legal Counsel, Caroline D. Krass, advised Obama that bombing Tripoli—even if done remotely, with little risk of immediate retaliation—counted as engaging in “hostilities” under the WPR, which meant that the president would have to terminate U.S. involvement or radically scale it back after the 60-day limit. As Savage reports, “Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said”—in other words, that if the president continued bombing Libya, he’d be violating the WPR.

Ordinarily OLC’s opinion would have the greatest weight here, but President Obama went with the advice given by White House Counsel Robert Bauer and State Department Legal adviser Harold Koh—who told him what he wanted to hear.

My Washington Examiner column today focuses on Harold Koh as an object lesson in the corrupting potential of power:

Harvard’s Jack Goldsmith notes that “for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war.” On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

“Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization.”

Who could have predicted that his legacy at State would be reading the WPR practically out of existence?

On Thursday, Koh took point at a press conference selling the administration line. The next day, he went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a strikingly self-congratulatory speech about maintaining one’s integrity in “public service.” The relevant part starts at around 33:00 in. Highlights: “I’ve lived the life I wanted to live; I’ve said the things I wanted to say”…”I still believe in my principles”…”I never say anything I don’t believe”…”if you hear me say something, you can be absolutely sure that I believe it [including “the administration’s position on war powers in Libya”]”…”if I say it, I believe it, and I intend to stand by it”…”For what is a man?/what has he got? If not himself/then he has not…” (OK, not the last bit).

As I note in the column:

John Dean, who served prison time for his role in the Watergate cover-up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.

They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being “in the room” when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

Oh, and by the way, Charlie Savage reports today that piloted strikes continued past the 60-day time limit, so even if Koh’s legal rationalization could pass the laugh test, it wouldn’t fit the facts we have.

White House: ‘We Have Never Been at War in Northafrica!’

Pardon the somewhat trite Orwell reference in the title to this post. But sometimes this administration’s wordgames make it hard to resist invoking our keenest analyst of politics and the English language.

Some months ago, the Obama team began telling us that the Libyan War wasn’t a war—it was a “kinetic military action.” (Go here to watch Defense Secretary Robert Gates try—and fail—to maintain a straight face selling that line to Katie Couric on 60 Minutes).

In April, the president’s Office of Legal Counsel made the (bogus) argument that the president hadn’t violated the War Powers Resolution because the WPR recognized his authority to engage in hostilities for at least 60 days without congressional approval.  We’re now coming up on 90.

Yesterday, in response to Speaker John Boehner’s (R-OH) request, the president issued a new explanation for why he isn’t in violation of the WPR, which requires the president to terminate US engagement in “hostilities” after 60 days in the absence of congressional authorization. And it turns out that, per Obama, not only is the Libyan War not a “war,” what we’re doing in Libya—supporting, coordinating, and carrying out attacks—doesn’t even rise to the level of “hostilities.”

The president’s report states that he hasn’t violated the WPR, because “U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision”:  they don’t “involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof.”

As Jack Goldsmith explains, “The Administration argues that once it starts firing missiles from drones it is no longer in ‘hostilities’ because U.S. troops suffer no danger of return fire.”  ”The implications here,” Goldsmith notes, “in a world of increasingly remote weapons, are large.”

I’ll say: this is an extraordinary argument: The president can rain down destruction via cruise missiles and robot death kites anywhere in the world. But unless an American airman might get hurt, we’re not engaged in “hostilities.”

Put aside the strange argument that acts of war don’t rise to the level of “hostilities.” Given that outrage over the illegal bombing of Cambodia was part of the backdrop to the WPR’s passage, it would have been pretty strange if the Resolution’s drafters thought presidential warmaking was A-OK, so long as you did it from a great height.

As legal arguments go, this is the national security law equivalent of the Clinton perjury defense. It’s the type of thing that gives lawyers an even worse name. Or maybe law professors, because, speaking of Bill Clinton, Obama’s the second former constitutional law professor in a row to violate the War Powers Resolution.

And yet, Obama continues to insist he’s in full compliance with the WPR, and he has no objection to the resolution on constitutional grounds.

God help me, I think I just felt a twinge of nostalgia for John Yoo.  Say what you will about the legal architect of Bush’s “Terror Presidency,” at least he had the courage of his bizarre convictions. When the statutes couldn’t be tortured into complete submission, Yoo would make the case that—whatever the law said—the president had the constitutional power to do as he pleased.  That’s clearly what Obama believes as well, but you’re not going to catch him admitting it.

Time Running Out in Libya?

Even defenders of broad presidential prerogatives are starting to conclude that Obama’s war in Libya violates the original legal justification for it offered by the Office of Legal Counsel (OLC) in the Department of Justice.

Briefly put, the OLC said the Libyan war was not a war because the operation would be limited as to means, objectives, and duration. Thus, the OLC argued, neither the Constitution nor the War Powers Resolution constrained the president’s prerogatives.

The objective has changed from protecting civilians to regime change. The war itself has gone on now for as long as the unauthorized war in Kosovo in 1999. Jack Goldsmith concludes: “as the days drag on, and as our deep involvement persists, it becomes harder and harder to represent that this mission is limited in nature, duration, and scope.”

A Legal Analysis of the New Arizona Immigration Law

I’m a bit late to the immigration party – in part because I’ve been traveling on my Obamacare debate tour and in part because the Kagan Supreme Court nomination and end-of-term Supreme Court decisions have sucked away all my time.  Still, I do have a few things to add beyond Dan Griswold’s excellent points about what real immigration reform would look like and why Arizona’s new law, love it or hate it, at least has the benefit of raising the need for such fundamental reform into the national political discussion.  (Jeffrey Miron also offers some sensible suggestions, and Roger Pilon points out that doing nothing is simply not tenable as a matter of policy or politics.)

First, the Arizona law – which I’ve actually read, unlike the attorney general and the secretary of homeland security – is carefully crafted so as not to go beyond the scope of federal law and so, as Dan alludes in his thoughtful podcast (drawing on discussions with Roger), is probably constitutional.  Here are the key things it does:

  1. Creates the new state crime of “trespassing by illegal aliens,” which essentially consists of being in the state in violation of federal immigration laws as determined by an officer or agency authorized by the federal government to verify immigration status;
  2. Sets out that no official or agency of the state or its political subdivisions (county, city, etc.) ”may adopt a policy that limits the enforcement of federal laws to less than the full extent permitted by federal law;”
  3. State (and local) law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” of any person with whom they have made “lawful contact … where reasonable suspicion exists that the [detained] person is an alien who is unlawfully present in the United States;”
  4. If an alien who is unlawfully in the United States is convicted of violating any state or local law [including the new “trespassing by illegal aliens”], the alien “shall be transferred immediately [on discharge from imprisonment or assessment of fine for the offense] to the custody of the [federal immigration authorities];”
  5. A police officer “may lawfully stop any person who is operating a motor vehicle of the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and [the the pre-existing law against human smuggling];”
  6. Makes it illegal to stop to hire or pick up passengers for work if the vehicle “blocks or impedes the normal  movement of traffic;”
  7. Makes it illegal for an illegal alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor;
  8. Makes it illegal for anyone violating the law (including the new illegal hiring law, as well as pre-existing prohibitions on hiring illegal aliens) to transport, move, conceal, or harbor persons who the alleged violator knows to be illegally in the United States, as well as to encourage or induce aliens to come to Arizona illegally;
  9. Provides an entrapment defense to the pre-existing crime of employing illegal aliens (whether knowingly or intentionally); and
  10. Authorizes the immobilization or impoundment of vehicles used to committ various vehicle-related offenses relating to illegal aliens.

None of these provisions, on their face, appear to be unconstitutional, in the sense of Arizona intruding on federal authority over immigration policy.  Indeed, as reported last week by the Washington Post, this conclusion is backed by a 2002 memo from the Office of Legal Counsel – the Department of Justice unit that acts as the executive branch’s “outside counsel.”  This memo concludes: first, that states have “inherent power” to make arrests for violating federal law and, second, ”federal statutes should be presumed not to preempt this arrest authority.”  OLC memos are not law themselves but they are the DOJ’s official position on various legal issue.  Having said that, an OLC memo can at any time be withdrawn or replaced – as indeed the 2002 memo replaced an earlier 1996 memo on the subject (or, more famously, Jack Goldsmith withdrew the so-called “torture memos”).  And, of course, Congress could pass a law saying states shall not enforce federal immigration laws.

Second, notwithstanding the new law’s facial constitutionality, state or local law enforcement officials could use it to behave in a way that intrudes on federal prerogatives or violates constitutionally protected individual rights.  That circumstance could give rise to an “as-applied” legal challenge.  If police officers stop Hispanic motorists on pretextual grounds just to ask for their papers, for example, that would constitute a Fourth Amendment violation.  Notably, however, the sections relating to state enforcement of federal immigration laws contains a provision specifying: “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Third, just because the law is constitutional doesn’t necessarily mean it’s good policy (just like not everything that some people say is good policy – like Obamacare, or torture during interrogations – is necessarily constitutional).  There are many arguments against the Arizona law unrelated to civil liberties or racial profiling concerns, including that it misdirects state and local resources away from more pressing priorities (such as violent crime); that it’s driven by misguided fears of crime (when crime has actually been dropping in Arizona, and nationally the foreign-born commit crimes at lesser rates than the native-born); and that an “enforcement-first” mentality gets things backwards in that we should first reform and expand the ways people can come here legally and then take action against those who still come illegally.  Similarly, there are many arguments in favor of the Arizona law not based in racism, or political opportunism, or misapplied economics. 

Fourth, the boycotts of Arizona adopted by city councils around the country – at last count, Berkeley, Boston, El Paso, Los Angeles, Oakland, San Francisco, St. Paul, and West Hollywood have all passed resolutions restricting official travel, investment, and/or contracts with the Grand Canyon State – are likely themselves unconstitutional.  That is, unlike private individuals, organizations, and businesses, states (and their political subdivisions) cannot erect barriers to trade against other states.   Preventing such interstate discrimination was, of course, one of the original purposes of the Constitution and, specifically, its Commerce Clause (which grants Congress the power to regulate interstate commerce).  We often discuss the Commerce Clause in terms of Congress incorrectly invoking it to justify legislation not having anything to do with either commerce or interstate activities – such as, again, the individual health care mandate – but just the same it protects economic liberty by forestalling trade wars.  (Technically, the issue here is the “dormant” Commerce Clause in that cities are intruding on the boycott-less regime Congress has established by not passing boycott laws.)  Lo and behold, Gary Pierce of the Arizona Corporation Commission sent a letter to L.A. Mayor Antonio Villaraigosa threatening to cut-off the 25 percent of its electricity that the City of Angels gets from its eastern neighbor.  “I am confident that Arizona’s utilities would be happy to take those electrons off your hands,” the commissioner says.  Stopping this sort of tit-for-tat silliness – along with being able to better muster national armies – is why we got rid of the Articles of Confederation.

In short, the Arizona immigration law presents a tremendously complex issue, as the Arizona Republic has recognized, that does not lend itself to easy calls or soundbites.  I myself am not certain how I would have voted if I didn’t have the third option (as Arizona doesn’t) of imminent federal reform – to the disconsolation of state legislators around the country who have asked me what they can do to placate a (legitimately) aggrieved public besides enactiong Arizona-style laws.

President Obama and Congress, pass comprehensive immigration reform now!

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:

The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.

It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.

And as Rep. Jerry Nadler pointed out, the IG report suggests a “clear pattern here of deliberate evasion,” rather than the innocent oversight the Bureau keeps pleading.  Both Nadler and the Republican ex-chair of the committee, Rep. James Sensenbrenner, expressed frustration at their sense that, when the FBI had failed to win legislative approval for all the powers on its wish list, it had simply ignored lawful process, seizing by fiat what Congress had refused to grant. Sensenbrenner, one of the authors of the Patriot Act, even declared that he felt “betrayed.” But we’ve heard similar rhetoric before. It was the following suggestion from Conyers (from my notes, but pretty near verbatim) that really raised an eyebrow:

There must be further investigation as to who and why and how somebody in the Federal Bureau of Investigation could invent a practice and have allowed it to have gone on for three consecutive years.  I propose and hope that this committee and its leadership will join me, because I think there may be grounds for removal of the general counsel of the FBI.

That would be Valerie Caproni, one of the hearing’s two witnesses, and an executive-level official whose dismissal would be the first hint of an administration response commensurate with the gravity of the violations that occurred. Caproni’s testimony, consistent with previous performances, was an awkward effort to simultaneously minimize the seriousness of FBI’s abuses—she is fond of saying “flawed” when le mot juste is “illegal”—and also to assure legislators that the Bureau was treating it with the utmost seriousness already. Sensenbrenner appeared unpersuaded, at one point barking in obvious irritation: “I don’t think you’re getting the message; will you get the message today?” The Republican also seemed to indirectly echo Conyers’ warning, declaring himself “not unsympathetic” to the incredulous chairman’s indictment of her office. Of course, the FBI has it’s own Office of Professional Responsibility which is supposed to be in charge of holding agents and officials accountable for malfeasance, but apparently the wheels there are still grinding along.

It’s also worth noting that Inspector General Glenn Fine, who also testified, specifically urged Congress to look into a secret memo issued in January by the Office of Legal Counsel, apparently deploying some novel legal theory to conclude that many of the call records obtained by the FBI were not covered by federal privacy statutes after all. This stood out just because my impression is that OIG usually limits itself to straight reporting and leaves it to Congress to judge what merits investigation, suggesting heightened concern about the potential scope of the ruling, despite FBI’s pledge not to avail itself of this novel legal logic without apprising its oversight committees. Alas, the details here are classified, but Caproni did at one point in her testimony conclude that “disclosure of approximately half of the records at issue was not forbidden by ECPA and/or was
connected to a clear emergency situation.”  There were 4,400 improperly obtained “records at issue” in the FBI’s internal review, of which about 150 were ultimately retained on the grounds that they would have qualified for the emergency exception in the Electronic Communications Privacy Act.  Since that tally didn’t include qualifying records for which legitimate process had nevertheless been issued at some point, the number of “real” emergencies is probably slightly higher, but that still suggests that the “half” Caproni alludes to are mostly in the “disclosure…not forbidden by ECPA” category.  Since ECPA is fairly comprehensive when it comes to telecom subscriber records—or at least, so we all thought until recently—we have to assume she means that these are the types of records the OLC opinion has removed from FISA’s protection. If those inferences are correct, and the new OLC exception covers nearly half of the call detail records FBI obtains, that would not constitute a “loophole” in federal electronic privacy law so much as its evisceration.

Of course, it’s possible that the specific nature of the exception would allay civil libertarian fears. What’s really intolerable in a democratic society is that we don’t know. Operational facts about specific investigations, and even specific investigatory techniques, are rightly classified. But an interpretation of a public statute so significant as to potentially halve its apparent protections cannot be kept secret without making a farce of the rule of law.

State Secrets, Courts, and NSA’s Illegal Wiretapping

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.

The John Yoo Theory of Gun Control

A modest proposal: Suppose that we decide to streamline our inefficient criminal justice system by treating people under suspicion of involvement with violent crime—whether or not they’ve been arrested, charged, or even informed of this suspicion—as equivalent to convicted felons.  Suppose, then, that we permit them to be stripped of certain constitutionally protected rights at the discretion of the executive branch.

Outrageous?  Some depraved brainchild of the Bush administration’s Office of Legal Counsel?  Actually, it’s the editorial position of The New York Times:

Under federal law, people who pose a heightened risk of violence cannot buy or own firearms, including convicted felons, domestic abusers, the seriously mentally ill and several other categories. Suspected terrorist is not one them.

Individuals on the government’s terrorist watch list can be barred from boarding airplanes, but not from purchasing high-powered guns or explosives. Bipartisan legislation in both houses of Congress would end this ridiculous loophole, commonly known as the “terror gap.

The Times does note, before dismissing the fact with the wave of a hand, that “thousands” of people have been found to be on the list improperly.  But let’s linger a bit longer over this.  The terrorist watch list, at last count, boasted about a million entries.  When you eliminate variant spellings and duplicate entries—and rest assured that this would be another enormous source of problems—there are about 400,000 unique individuals on the list, of whom some 20,000 are Americans. Thousands more are nominated for inclusion on the list each week.

Employ, for a moment, some common sense and arithmetic. The 9/11 attacks were carried out by 19 people. (I should add: 19 people armed with box cutters.) If even one percent of those 20,000 were truly intent on staging violent domestic attacks, doesn’t it seem likely we would have noticed? To be sure, some small subset of them really are serious threats. They are probably the very people the government is actively investigating, and would prefer not to tip off by, say, having their attempted gun purchases denied.

There’s also, of course, an almost heartwarming faith in formal process here.  I can imagine circumstances where blocking someone at a point of sale might prevent bloodshed—some guy in the heat of passion or the haze of liquor acting on impulse to settle a score. But trained and fanatically committed terrorists, backed by the resources of an international network, who typically spend months or even years plotting significant operations? Are they serious? How does that conversation go? “No, no, I’m sorry Osama.  Yes, the Wal-Mart clerk, she would not sell us a pistol! I know, and after Ayman went to all that trouble making our fake passports by hand. I was disappointed too.  But I guess we’d better scrap the plan and head back to Yemen.”

What the other categories of “risky” people the Times lists have in common is  that they’ve been determined to be dangerous by a court, which is normally the process by which we go about depriving people of their rights. It seems perverse to depart from that principle precisely for the category of suspects least likely to be hampered by these sorts of limitations.