Balkinization  

Tuesday, October 02, 2007

Need to Know?

Marty Lederman

Jack Goldsmith testified before the Senate Judiciary Committee this morning. His prepared remarks can be found here.

To my mind, the most revealing, important and remarkable aspect of his testimony was that the Bush Administration would not allow the Deputy Attorney General and the NSA General Counsel to see the OLC legal analysis supporting the NSA's outside-FISA electronic surveillance program. In his submitted testimony, Goldsmith writes:
Secrecy is obviously important in war. But too much secrecy can be counterproductive. In my opinion, the Bush administration was excessively secretive inside the Executive branch when it came to the production and receipt of legal advice. For example, the controversial interrogation opinion of August 1, 2002, was not circulated for comments to the State Department, which had expertise on the meaning of torture and the consequences of adopting particular interpretations of torture. [For more on this, see Point 1.a. here.] Another example is the Terrorist Surveillance Program (“TSP”). Before I arrived at OLC, the NSA General Counsel did not have access to OLC’s legal analysis related to the TSP. FBI Director Mueller has noted that Attorney General Ashcroft complained “that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.” I, too, faced resistance from the White House in getting the clearance for the lawyers I needed to analyze the program.

This extreme internal secrecy was exacerbated by the fact that the people inside the small circle of lawyers working on these issues shared remarkably like-minded and sometimes unusual views about the law. Close-looped decisionmaking by like-minded lawyers resulted in legal and political errors that would be very costly to the administration down the road. Many of these errors were unnecessary and would have been avoided with wider deliberation and consultation. The administration acknowledged, for example, that the extreme contentions about the President’s exclusive constitutional powers in the famous interrogation opinions – contentions that led many in the United States and abroad to assume the worst about the administration’s intentions related to torture – were “overbroad” and “unnecessary.”

There is a balance to be struck between too much and too little secrecy inside the Executive branch. But just as it was widely thought after 9/11 that the intelligence agencies were acting sub-optimally because they were not sharing information, it now seems obvious that the Executive branch was too secretive and compartmentalized in its legal deliberations in the years after 9/11. Executive branch legal analysis naturally suffers from a lack of external scrutiny and criticism, and every effort should be made to enhance rather than hinder such scrutiny and criticism inside the government, even, and indeed especially, on sensitive national security matters.
I could not agree more (see Principles Nos. 6-8 here.)

Then, in his oral testimony, Goldsmith revealed that, at least for a while, the White House would not permit Goldsmith even to "read into" the NSA program James Comey, the Deputy Attorney General! Senator Schumer (I believe) asked Goldsmith if the White House had provided any reason for refusing to allow Comey to know about the program. Goldsmith responded that they said something regarding the "importance of secrecy." In other words, they (sotensibly) did not trust Comey or the NSA General Counsel not to abide by classification rules!

Think about that for a second. Numerous telecommunications executives and technicians were informed about this top-secret program, and (presumably) were given some account of why their participation would be legal notwtihstanding FISA. But the Administration continues to refuse to inform Congress about that legal justification (even though it is now asking Congress to immunize the telecoms for having relied on the legal advice that Congress itself cannot see!); and moreover, the White House would not allow the Deputy Attorney General or the General Counsel of the NSA itself to be let in on the secret!

Perhaps one has to have worked at DOJ or NSA to understand how truly shocking, how inexplicable, that is.

Obviously, the reason these officials were not "read into" the program until Goldsmith and Ashcroft insisted upon it was not fear that they would leak vital information to Al Qaeda, but instead that the legal justification was so transparently flawed that it could not withstand any independent review at all -- a judgment that turned out to be true, of course: As soon as anyone outside the Cheney/Gonzales/Yoo circle saw the legal analysis, they realized it was so extreme and untenable that they would have to resign if the President continued to act in reliance upon it. Goldsmith testified today that the NSA program was "the biggest legal mess I encountered [at OLC]." In light of the August 2002 Torture opinion, that's really saying something!

Just when you thought nothing this Administration has done could surprise you anymore . . . .

Comments:

Obviously, the reason these officials were not "read into" the program until Goldsmith and Ashcroft insisted upon it was not fear that they would leak vital information to Al Qaeda, but instead that the legal justification was so transparently flawed that it could not withstand any independent review at all -- a judgment that turned out to be true, of course ...

Isn't that how it typically works with secrecy - the state uses it to cover up its misdeeds?

I'm not so surprised as Prof. Lederman, but it's long been obvious that Cheney has no respect for cabinet officials who might disagree with him, let alone for their subordinates.
 

This almost looks like security through obscurity - trying to hide the fact they're hiding things, so that nobody will try to look for hidden things.
 

Unless the President has a legal question for a particular government attorney which absolutely requires he or she be read in on the program, there is not a single attorney in the government which has a military need to be read in on any intelligence gathering program.

The first rule of counter intelligence is to keep all top secret programs compartmentalized to the fewest possible people with a real need to know. Even if the party read in has no intent to reveal the program to the enemy, it is human nature to share secrets. Thus, the fewer personnel, the better.

Mr. Goldsmith's testimony calling for more lawyering of war is at odds with the parts of his book critiquing how the war fighters are overly bound by lawyering to the point where they can no longer do their jobs properly.

Mr. Goldsmith noted that this over lawyering simply did not exist prior to Vietnam. Indeed, his comparison between today and WWII is very illustrative. FDR never would have considered legally vetting the top secret intelligence gathering programs against the Japanese and Germany or the Marshall Plan. Those military programs were extremely compartmentalized to preserve their security.

Given the repeated disclosures of our most top secret intelligence gathering programs against al Qaeda, it is obvious to even the greenest intelligence officer that the compartmentalization of these programs should have been far greater rather than loosened by adding still more attorneys to debate the process.

Mr. Goldsmith obviously picked up very little counter intelligence knowledge during his very brief stint as OLC or he would not be giving this ignorant testimony. A basic counter intelligence course obvioulsy should be mandatory for anyone read into these programs.
 

Bart, while the points you make may make some sense in theory, in practice, this comes down to the predilection of the particular administration to abuse.

If you have an administration that is very careful and scrupulous about following the law, perhaps the compartmentalization rationale outweighs the need to ensure that legal opinions are subjected to group dynamics and criticism.

On the other hand, if you have an administration that is interested in expanding executive power as far as possible (even beyond the limits of Article II, whatever those limits may be), establishing precedents that it can disobey statutes and constitutional provisions, and simply looking for any legal rationale it can point to, no matter how flimsy, to justify pushing the limits, I would tend to think that the need for some sort of real legal discussion among people who don't have a maximalist conception of executive power outweighs the need for compartmentalization.

Therefore the answer to this question really depends on what you think the essential character of the Bush Administration is-- are they rule-followers or rule-stretchers and rule-breakers?
 

As expected, the good professor shut down the comment section on his last post on the Webb Iran bill. I give this one a few more hours before the ax falls.

Last time I referred to the fact that Mr. Goldsmith's views did not match the party line here, the comments section was shut down about an hour later...

Touchy, touchy.
 

"Bart" DePalma:

Unless the President has a legal question for a particular government attorney which absolutely requires he or she be read in on the program, there is not a single attorney in the government which has a military need to be read in on any intelligence gathering program.

Who said anything about a "military need"? If they wanted to see if the program was ... let's say, legal? or constitutional? ... maybe they would want to ask some other lawyers, eh?

"Bart"'s doing his "framing" once again; trying to divert the line of discussion into an area he thinks more favourable to his position....

"Bart": Clue fer ya, it may work for Republican supporters and the Freeper crouwd, but it doens't work with the kind of people here.....

The first rule of counter intelligence is to keep all top secret programs compartmentalized to the fewest possible people with a real need to know. Even if the party read in has no intent to reveal the program to the enemy, it is human nature to share secrets. Thus, the fewer personnel, the better.

OK, You win. How about nobody knows about the program? That would do it for me.

Cheers,
 

Not to be a dumbass, but....

"Bart" DePalma: Given the repeated disclosures of our most top secret intelligence gathering programs against al Qaeda,....

Where? What? How? I kinda missed it.....

Truth be told, I think I know a bit more about the technology that "Bart", and nothing I've seen has surprised me (that is definitely not to say "horrified me" or "alarmed me"). So really, "Bart", I must have missed it. Was it buried on page 32 of the New York Times somehere sometime back a bit? I'm serious, "Bart", clue me in. It is, after all, an important part of my business.....

Cheers,
 

"Bart" DePalma:

As expected, the good professor shut down the comment section on his last post on the Webb Iran bill. I give this one a few more hours before the ax falls.

You starting to see a pattern? Why don't you do us all a favour and STFU instead of repeating your same ol' trite 'arguments' that have been addressed long ago?

Were you to ever enter a discussion honestly, the dialogue might endure (and, to be honest, when we get you off your hooby-horses, it does sometime). When you give the same ol' crapola over and over (resulting in the same ol' refutations), things just go downhill. So time for the 15 minute limit, "Bart". You get your time, you say it once. Choose you course wisely and budget your time. Then the judges decide. That's the way it works.

Cheers,
 

Bart's theory would sound plausible, in a vacuum.

Our actual experience with what happens when legal judgments are made in secret, by true believers who equate dissent with betrayal, does not however support Bart's theory.
 

marty - i recorded the audio of today's SJC hearing (since c-span did not cover it, and the SJC typically does not mantain their webcasts in an online archive). the mp3 is available at this webpage. hope folks find it useful.
 

Selise, thanks for the contribution. Having access to the actual sources is fantastic, and people like you who have the forethought to record such events make things wonderful for the rest of us.
 

arne:

"Bart" DePalma: Unless the President has a legal question for a particular government attorney which absolutely requires he or she be read in on the program, there is not a single attorney in the government which has a military need to be read in on any intelligence gathering program.

Who said anything about a "military need"? If they wanted to see if the program was ... let's say, legal? or constitutional?


Military need is the only relevant criteria for foreign intelligence gathering. Foreign intelligence gathering by the President is constitutional and cannot be made illegal by Congress because it has no Article I power to direct intelligence gathering. Thus, there is no reason to read in attorneys to debate the merits of foreign intelligence gathering policy on the grounds of determining whether it is constitutional or lawful.

"Bart" DePalma: As expected, the good professor shut down the comment section on his last post on the Webb Iran bill. I give this one a few more hours before the ax falls.

You starting to see a pattern? Why don't you do us all a favour and STFU...


I agree that shutting up opposing views is the purpose of shutting down the comments section.
 

"Bart" in a nutshell:

Military need is the only relevant criteria for foreign intelligence gathering.

IOW, legality is beside the point. Same for military interrogations "for intelligence purposes", too, I suppose. Hello, Nürnberg....

[Arne]: You starting to see a pattern? Why don't you do us all a favour and STFU...

I agree that shutting up opposing views is the purpose of shutting down the comments section.


No. Shutting it down is an indication that some azo has jumped the shark completely and further discussion is not only unproductive but counterproductive.

Your statement I quoted at the beginning of this comment is such an event. If you don't think that this gummint is bound by the law, there is no more to discuss here, and your repeated blather becomes mere noise, suitable for the pages of LittleGreenSnotballs or Freeperville, but not a legal blog.

Capece?

Cheers,
 

"This almost looks like security through obscurity - trying to hide the fact they're hiding things, so that nobody will try to look for hidden things.

# posted by bitswapper : 2:49 PM" (above)

This comment seems to get to the heart of the Bush administration's secrecy and lack of credibility. Its not so much about national security (I don't know anyone who is unwilling to accept that there are some things that ought not be public in some areas), law or policy so much as about making it impossible for other authorities (i.e. Congress, the courts and the public) to apply critical scutiny to its actions.

If you don't know something is going on at all, or even that it is being contemplated, the other participants in our system can't play their necessary part. How can Congress legislate, the Courts decide or the public vote intelligently under these circumstances?
 

Bart writes:
Last time I referred to the fact that Mr. Goldsmith's views did not match the party line here, the comments section was shut down about an hour later...

Touchy, touchy.


Bart, can you recount for the edification of us all here how you were blatantly trolling to try and drive traffic for your own blog? How well did it work for you? Any hits?

And, can you somehow manage to not insult the host and his guests, or if you can't stop yourself, try at least to make them sound like adult insults? I know you're capable of that much. Also, I think people here can put up with conspiracy theories, if at least they are well thought out ones.
 

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