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Memo to the NSC: Check Out Some Databases at the State Department before Finalizing that New Executive Order

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Benjamin Wittes and Susan Hennessey write at Lawfare:

We received this morning an extraordinary message from a group of Foreign Service officers.

The message arrived in the wake of CNN’s report yesterday evening that President Trump has ordered DHS and DOJ to “help build the legal case for its temporary travel ban on individuals from seven countries,” and that some individuals “in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.” According to CNN:

“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” [a] senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

Keep this story in mind as you read the following inquiry from a Foreign Service officer who has done consular work abroad. Writing for a small group of three other colleagues, this individual begins by noting Lawfare’s prior “advice for civil servants about the ethics of service under the Trump administration” and goes on to seek out ethical advice about how to best handle certain specific concerns facing Foreign Service officers. Namely, this group is worried that the rollout of the executive order on immigration—both the initial order and the forthcoming substitution—is taking place without consideration of important, available data.

The author writes:

 This E.O. is being introduced without clear evidence demonstrating that visa applicants/visa holders from these seven countries pose a credible threat to our national security. This major policy change may be occurring without consideration of information that may be held under various agencies documenting terrorism-related activities or other unlawful actions by visa holders. This leads to moral and professional considerations: What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy? Can FSOs in visa adjudication positions appropriately implement this E.O. without knowing if its claims are based on sound evidence?

This email was triggered in part by a report I read today on CNN.com, which details the White House’s efforts to collect evidence that the seven countries named in the original E.O. have “all been exporters of terrorism into the United States.” We have questions about whether the administration analyzed records from the State Department or other agencies prior to forming this immigration policy. If those records have not been analyzed, that would tend to support the concerns voiced by intelligence officials in this article, who suggest the administration is seeking evidence to justify its policy, rather than crafting policy based on all available evidence. There is of course lots of sensitive data that is held within the federal government. But there is no need to even discuss that in order to illustrate the hypothesis that not all relevant government-held data is being consulted in the E.O. drafting process. There are plenty of databases the fact of which are matters of public record which represent at least the surface of what the Administration should be considering here.

Every day, FSOs rely on access to the Consular Consolidated Database (CCD) to inform their visa adjudications and screen visa applicants. A report by the Congressional Research Service (CRS) and testimony by the former head of the State Department’s Consular Affairs Bureau describe the CCD, which contains 143 million facial/biometric records and visa application records for foreign nationals who have sought entry into the United States. Consular officers compare new visa applications with information in the CCD to make a determination of an applicant’s eligibility for a visa (in tandem with other forms of vetting). CRS describes how the CCD “links with other databases to flag problems that may have an impact on the issuance of the visa,” and names the following linked databases:

  • IDENT and IAFIS, which compare fingerprints to DHS and FBI data, respectively.
  • A facial recognition database, which compares photos against records at the Terrorism Screening Center.
  • ADIS, which shows all DHS-documented entries/exits by a visa holder.
  • CLASS, which uses name-searching algorithms to compare applicants to derogatory information from other agencies, including DHS, the FBI, and the DEA, among others.
  • KFE, which compares an applicant’s aggregate data to the National Counterterrorism Center database.

The information in the CCD is classified and not available for recreational fishing. But the administration can presumably access databases like the CCD if it wants to do so in formulating policy.

Extrapolating from the CRS report, if a visa-bearing foreign national incurred a U.S.-based terrorism-related or criminal charge, the CCD would likely contain a record of this information. It may therefore be possible to determine the number of visa holders from the seven nations named in the E.O. who have (1) been flagged for terrorism-related activities, (2) who have been charged with crimes in the United States, (3) who have had their visas revoked for other adverse reasons, or (4) who have overstayed their visas, among other useful information. It should also be possible to compare the rates of these figures among visa-bearers from one country to the next. Already, this example highlights the existence of directly relevant, multi-year data that could be used to inform policy.

We don’t know if such information has been considered or analyzed by the administration; our point is that it exists within relatively easy reach.

Our experience processing visas—and among us we have conducted many thousands of visa interviews—leads us to suspect that data from the CCD would likely show, if consulted, that visa holders from these seven nations pose no credible threat to our country. But we could very well be wrong about that. And if a proper analysis revealed the opposite, the administration would at least have a more defensible policy in relation to the facts, and visa adjudicators would have a clearer rationale for action. Based on our current understanding of the drafting process, the new E.O. seems likely to target nationals of seven countries despite a large volume of information in the hands of the government that bears directly on the factual assumption behind the order.

With all this in mind, what obligations do FSOs have, if any, to highlight the existence of potentially relevant databases to civil servants and decisionmakers in other agencies? Any advice would be appreciated. Our views here are our own and not official State Department positions. To be clear, we are not taking a position on the policy, just seeking your advice about how to handle policy that appears to be being made without regard to known data.

There’s a lot to talk about with regard to the specific questions above, but it is worth pausing to note as an initial matter the mere fact that a group of junior Foreign Service officers is currently put in the position wherein they are even contemplating whether they have an obligation to reinforce the interagency process with respect to the Justice Department. This fact reflects the the failure so far of the actual interagency process to function—and the failure of the White House to conduct interagency consultation processes with even minimal integrity.

Let’s turn now to the author’s basic questions. First, “What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy?”

At a legal and formal level, this is an easy question: there is no obligation here of any kind.

At a formal level, anyway, it’s not the responsibility of individual Foreign Service officers to ensure that an administration takes available data into account before making policy decisions. It is the obligations of Justice Department attorneys—not Foreign Service officers—to ensure that they comply with their own professional and ethical obligations of candor to the tribunals to which they submit briefs and in which they stand up and make factual representations in defense of executive orders the President has issued.

To be more specific, the President and the National Security Council are responsible for making policy that is factually defensible, and to the extent they fail to do this, they expose themselves to severe litigation risk and public criticism. To the extent they choose, as they certainly should, to include the State Department in the interagency vetting of the new executive order, it is certainly someone’s job at the State Department to flag for them that the department has large volumes of data that bear on the factual integrity of the order the President is about to affix his name to. But whose responsibility that is depends on the structure the department has in place, if any, to examine its own equities in contributing to the interagency process. Individual Foreign Service officers have no ethical duty in that regard to the extent they are not part of that structure.

The Justice Department—and the individual attorneys who end up defending the order—certainly has a duty to be truthful with the courts, and specifically a duty not . . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 7:49 pm

Trump’s DOJ to Assert State Secrets Privilege in Salim v. Mitchell

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An interesting development is reported in Lawfare by Robert Loeb and Emma Kohse:

It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security. In a response filed Wednesday to the defendants’ motion to compel depositions of “two purported CIA witnesses,” the DOJ indicated its intention to assert the privilege in opposition to this motion and one other motion to compel the testimony of a CIA witness. The DOJ states that to either confirm or deny the three alleged witnesses’ roles in the detention and interrogation program “would itself disclose classified information.” The formal claim of privilege, which will be filed by March 8, must come from the head of the department that has control over the matter—likely CIA director Mike Pompeo.

The defendants in this case are former CIA contractors James Mitchell and John “Bruce” Jessen, whose role in designing the now-infamous enhanced interrogation program used in black site CIA prisons overseas was detailed in the declassified Executive Summary of the CIA’s Detention and Interrogation Program (SSCI Report). In 2015, the ACLU brought suit under the Alien Tort Statute against Mitchell and Jessen on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman (who died in CIA custody), alleging that the two contractors are “directly liable” for acts of torture, non-consensual human experimentation, and war crimes perpetrated against the three men during their time in custody. (For a more complete picture, see our earlier case coverage here and here.)

Under the state secrets doctrine, the U.S. government can seek to exclude evidence from any civil trial by asserting that legal proceedings on the topic risk disclosing sensitive information and pose a threat to national security. Judges may attempt to verify the legitimacy of such assertions through in camera proceedings, but many defer to the executive branch’s judgment on what constitutes a national security secret. Though the exclusion of evidence on national security grounds does not necessarily mandate outright dismissal, in practice, claims focused on sensitive topics like counterterrorism or surveillance frequently don’t survive the invocation of state secrets.

Notably, prior challenges to the legality of CIA interrogation techniques have been thrown out after the government asserted its state secrets privilege, even when the United States was not itself a defendant in the case. This time, the DOJ did not seek to dismiss the case in its initial stages, likely in recognition of the sheer volume of relevant information already in the public domain: In addition to the SSCI Report, other CIA documents on the interrogation and rendition program were released in response to a FOIA suit brought by the ACLU in 2016. Instead, the government joined the suit as an interested party to protect classified information, opposing many of Mitchell and Jessen’s attempts to access additional CIA documents and depose CIA personnel.

Mitchell calls the SSRI Report “misleading,” and claims that he needs additional classified information to prepare a defense. If the court agrees that the excluded information is essential to trying the case, it’s possible that the state secrets privilege could prove fatal to the suit. However, that outcome seems unlikely at this point, particularly in light of the fact that the DOJ is not asking for dismissal.

The Obama administration’s forbearance on asserting the state secrets privilege in Salim v. Mitchell has been the subject of much discussion. After President Bush had been roundly criticized for what some called abuse of the privilege, President Obama’s Attorney General Eric Holder instituted new policy to limit its use in litigation, but critics saw more of the same until this case.

Even before Donald Trump took office, some speculated that his administration might change the legal strategy by invoking the state secrets privilege either to avoid releasing requested information in discovery, or to avoid the litigation altogether. This first use by the Trump administration appears to be relatively narrow, and may represent nothing more than a response to the specific depositions requested by Mitchell and Jessen. In other words, the Obama (or Clinton) administration may have responded identically to these specific motions to compel testimony, using privilege to prevent the release of critical national security information.

Still, it’s worth underscoring that . . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 7:07 pm

Michael Glennon: ““American democracy is now confronting an abyss”

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I have blogged about Michael Glennon’s book National Security and Double Government. Jefferson Morley’s interview of Glennon appears in Salon.

Ah, listen to that ominous phrase, the “Deep State.”

You hear the words hissing from the fur-lined rat hole of Breitbart. They ring from the pulpit of Greenwald. They sound in the silos of Salon and The Atlantic and Foreign Policy. And over on Twitter, the white nationalists are Jew-baiting the hapless Bill Kristol because he prefers the Deep State to the Trump State.

In other words, the situation is hopeless, but not serious. In a sobering interview with the German daily newspaper Suedeutche Zeitug, Yale history professor Tim Snyder recently suggested that American democracy has less than a year to live. Is it really possible that the Madisonian republic, founded in 1789 and renewed in 1865, is about to die?

Yes, says Michael J. Glennon, professor of international law at the Fletcher School of Law & Diplomacy at Tufts University.

I turned to Glennon for answers because he has stomped a few grapes in the vineyards of Washington. He worked on the Senate Foreign Relations Committee, and thought big thoughts at the Brookings Institution before taking refuge in academia.

Glennon is the author of National Security and Double Government, one of the most acute assessments of American government you are ever likely to read. If you need to lose sleep, buy Glennon’s tome. Whether you like President Trump or hate President Trump, Glennon’s book will wake you up to America’s current reality.

Jefferson Morley: Has President Trump exposed the undemocratic character of our “double government”?

Michael Glennon: The façade was crumbling before Trump appeared, but he’s removed the frontage and unveiled the power exercised by the national security bureaucracy.

JM: What do you mean, “the facade was crumbling”?

MG: In earlier U.S. presidencies, that power was largely concealed because it would have undermined the legitimacy of the constitutionally established institutions—the Executive, Congress and the courts—if the public understood the extent to which those three branches had ceded authority over national security to an unelected bureaucracy. So they had an incentive to pretend they were in control.

But the open split between Trump and the intelligence community has made clear that the security managers have an agenda of their own, and pursue it with very few checks. This was concealed from the public during the Obama administration because Obama largely embraced their agenda as his own and when they screwed up, he took responsibility, as had other presidents. Trump is different.

JM: Can/should the Deep State rescue us from Trumpism, as Bill Kristol recently mused?

MG: Bureaucratic checking by the security managers won’t work and is a dangerous idea. It won’t work because, unless the security managers deliver a knockout blow and force Trump out of office within the next few weeks, he’ll use divide-and-conquer tactics to root out the opposition and claim their organizations as his own.

The playbook for dismembering a disliked bureaucracy is widely known to organizational theorists, and it’s only a matter of time before Trump will be able to employ those methods to get control of these agencies. Factions within them will align with Trump to do his bidding and ultimately will come to dominate rival, opposing factions. Trump can then declare victory, as he must do so as to restore public confidence in his own judgment—he is, after all, forced to rely upon their information and analysis in making national security decisions; where else can he look?

At that point the rivalry will cease and the “deep state” will emerge front-and-center as Trump’s overt partner in governance. That’s the more likely scenario.

JM: Sounds positively Putinesque.

MG: An alternative scenario is no more comforting. Under it, a continuing series of leaks and challenges to his authority either drive him from office, through resignation or impeachment, or leave him so enfeebled that he is in effect a ceremonial president taking orders from the security bureaucrats, who operate more or less in plain view.

The managers are in this scenario so widely understood to wear the crown that it’s no longer necessary to hide the fact. Of course, this would represent a very different form of government, and given the historical record of abuse of power by these agencies, there is little reason to believe that their rule would represent a “rescue” in any meaningful sense of the word.

JM: Is it possible to oppose both the Deep State and Trump? . . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 3:33 pm

549 key positions in the administration need Senate confirmation. So far, Trump has filled 14.

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Tara Golshan has a good report at Vox. The key fact are in the first two sentences of the report:

There are 549 key positions in President Donald Trump’s administration that require Senate confirmation. Trump has yet to nominate anyone to 515 of them. . .

Read the whole thing.

Trump certainly has not let this cut into his golf time or his rallies. Is he in fact interested in doing his job?

Written by LeisureGuy

24 February 2017 at 2:37 pm

White House Defers to “States’ Rights” on Transgender Protections — But Not on Legalizing Marijuana

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Zaid Jilani reports in The Intercept:

White House Press Secretary Sean Spicer cited “states’ rights” on Tuesday in defending the Trump administration’s decision to end the Obama administration’s federal protections for transgender students.

“The president has maintained for a long time that this is a states’ rights issue and not one for the federal government,” he said. “All you have to do is look at what the president’s view has been for a long time that this is not something that the federal government should be involved in. This is a states’ rights issue.”

But on Thursday, asked about federal marijuana enforcement, it was like the states had no rights at all. Arkansas-based reporter Roby Brock asked Spicer about the administration’s posture towards Arkansas’s new medical marijuana law.

Spicer suggested that the Trump administration would respect state laws related to medical marijuana — but not offer the same respect for recreational marijuana.

Watch the contrast:

“There are two distinct issues here. Medical marijuana and recreational marijuana,” Spicer said. “Medical marijuana, I’ve said before that the president understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs including medical marijuana can bring to them.”

But Spicer compared recreational marijuana use to deadly opioid addictions. “I think that when you see something like the opioid addiction crisis blossoming in so many states around this country the last thing that we should doing is encouraging people, there’s still a federal law that we need to abide by in terms of … when it comes to recreational marijuana and other drugs of that nature.”

Shannon Pettypiece of Bloomberg followed up by asking if the federal government would take action against recreational marijuana. . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 2:33 pm

White House Power Player Jared Kushner Is Keeping Parts of His Real Estate Empire

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Justin Elliott and Al Shaw report in ProPublica:

Jared Kushner, the president’s son-in-law and the heir to a family real estate empire, has emerged as perhaps Donald Trump’s closest adviser. A near-constant presence by Trump’s side, his portfolio includes business, tax, political, and foreign policy matters.

Last month his lawyers outlined a plan under which they said Kushner would avoid any possibility that his White House work would overlap with his business interests.

The plan didn’t have much detail. But newly releaseddocuments and statements from the White House are making the picture clearer: Kushner is keeping parts of his family business.

Kushner retains some real estate holdings associated with Kushner Companies, a White House spokesperson said in an email.

Kushner has divested ownership of a number of Kushner Companies businesses and one large Manhattan office building, the White House spokesperson said. But the White House and a Kushner Companies spokesman declined to say what Kushner is keeping and what he has given up.

Kushner’s decision to keep some of his business, ethics lawyers say, raises questions about how he will recuse himself from government matters that could affect his own bank account.

“What mechanism will the White House use to ensure that Kushner will not participate in matters that affect his retained financial interests?” asked Kathleen Clark, an ethics law expert and professor at Washington University School of Law. “We, the public, should have information about what types of matters Kushner is going to have to recuse from.”

Given the sprawling and complicated nature of the Kushner family business, the issue is not academic.

The New York Times recently explored Kushner Companies’ dealings with a Chinese firm that has ties to that country’s government. Kushner Companies has also had relationships with a number of large financial firms such as Goldman Sachs that will likely be affected by Trump administration policies.

Kushner Companies’ real estate holdings are intertwined with Fannie Mae and Freddie Mac, the mortgage finance giants that may face an overhaul during the Trump administration, as Bloomberg recently reported.

Asked about Kushner’s plan to avoid conflicts, White House spokeswoman Hope Hicks did not offer any specific areas that he will recuse himself from. She said in an email:

“Like other government employees, Mr. Kushner will recuse from particular matters that would have a direct and predictable effect on his financial interests and will comply with financial disclosure requirements.”

Here’s why recusals are needed and how they work

Kushner was hired as an executive branch employee, so he must comply with the law that makes it a crime for an official to work on a government matter that will affect his financial interests. (As president, Donald Trump is, famously, exempt from that law.)

People entering the government have two primary ways of resolving conflicts: selling off the assets that may pose a conflict, or keeping ownership and recusing themselves from government matters that could affect the holdings.

For officials like Kushner who hold onto assets, there is usually a memo outlining areas of recusal, ethics lawyers say. Sometimes there is a screening process so the official isn’t invited to, say, a meeting on a matter that would affect their holdings. . .

Continue reading. There’s quite a bit more.

Written by LeisureGuy

24 February 2017 at 1:01 pm

Trump’s First Terror Arrest: A Broke Stoner the FBI Threatened at Knifepoint

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Murtaza Hussain reports in The Intercept:

The Department of Justice proudly announced the first FBI terror arrest of the Trump administration on Tuesday: an elaborate sting operation that snared a 25-year-old Missouri man who had no terrorism contacts besides the two undercover FBI agents who paid him to buy hardware supplies they said was for a bomb — and who at one point pulled a knife on him and threatened his family.

Robert Lorenzo Hester of Columbia, Missouri, didn’t have the $20 he needed to buy the 9-volt batteries, duct tape, and roofing nails his new FBI friends wanted him to get, so they gave him the money. The agents noted in a criminal complaint that Hester, who at one point brought his two small children to a meeting because he didn’t have child care, continued smoking marijuana despite professing to be a devout Muslim.

One of the social media posts that initially caught the FBI’s attention referred to a group called “The Lion Guard.” Hester told one of the undercover agents the name came from “a cartoon my children watch.”

But according to the DOJ press release, Hester had plans to conduct an “ISIS-sponsored terrorist attack” on President’s Day that would have resulted in mass casualties had it succeeded.

News reports breathlessly echoed the government’s depiction of Hester as a foiled would-be terrorist. But the only contact Hester had with ISIS was with the two undercover agents who suggested to him that they had connections with the group. The agents, who were in contact with him for five months, provided him with money and rides home from work as he dealt with the personal fallout of an unrelated arrest stemming from an altercation at a local grocery store.

Hester, who had briefly enlisted in the U.S. Army before being discharged in 2013, had posted images of weapons and a flag sometimes associated with terrorist groups on a social media platform. He had also written “Burn in hell FBI” and “Brothers in AmurdiKKKa we need to get something going here all those rednecks have their little militias why shouldn’t we do the same.” In another post, he asserted that ISIS was created as part of a conspiracy by the United States and Israel.

Hester was arrested by local police in October after getting into a dispute with his wife in the parking lot of a grocery store, allegedly damaging store property. The FBI complaint says that when store employees confronted Hester “he assumed an aggressive stance, forcefully placed his hand into the diaper bag he was carrying, in a manner that appeared to be reaching for a weapon.” Police, they said, later recovered a 9 mm handgun from the diaper bag.

Hester was taken into custody and released 10 days later, placed under electronic monitoring and subject to drug testing until his court appearance.

According to the complaint, the FBI undercover agent began communicating with him a day before he was arrested and continued after Hester left jail — commenting on Hester’s anti-government social media posts (which included news articles about a U.S. military strike in Yemen) and offering to help Hester with his expressed desire of “hitting [the government] hard.” The agent told Hester that he knew some individuals he had met recently who shared these ideas. . .

Continue reading.

Written by LeisureGuy

24 February 2017 at 12:44 pm

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