Summary
These issues relate to legal analysis provided to the President's intelligence advisory board; and how that legal position squares with NYPD surveillance operations.
There are potential FISA and Geneva compliance issues connected with legal memos provided to the President's Intelligence Oversight Board. This reviews some of the public information connecting ODNI with the IOB and PIAB.
Summarizes with various questions which may be of interest to public document researchers or prosecutors conducting war crimes investigations.
Disclaimer: No attempt is made to claim named inviduals participated, supported, or failed to properly report war crimes; nor have they failed to provide lawful memos.
The AP reporting of the NYPD-CIA domestic surveillance reviewed documents showing local law enforcement engaged in surveillance using questionable methods.
The White House through ODNI is connected with this domestic surveillance, which should have triggered some of the Intelligence Oversight Board (IOB) reviews: Was the transfer of information from NYPD to ODNI proper; and was that information retained consistent with the law.
In 2010, ODNI issued a Christmas Party invite list to members of the President's Intelligence Oversight Board. One name on the invite list is an attorney,
R A Y H E D D I N G
Source
Analysis
The invitation list is from 2010, nine (9) years after 9-11. The issuing agency for the invitation list, which included Hedding's name is ODNI, the single agency the Congress and President coordinated intelligence collection taskings.
On the
invite list, Hedding's name is associated with the following organizations connected with the (linked) intelligence community oversight:
Counsel to the PIAB and IOB
Source: Links not in original
Analysis
The 2010 ODNI invitation list connects named legal counsel with the IOB and PIAB.
Hedding's name appears in
this working group list, which include the following working groups:
Working Group Studies With Possible Connection to NYPD, FISA, Geneva
Military Response, incl.
· Pre-Event
· Mobilization authority
Events/Authorities triggering Federal response actions in absence of Emergency declaration
Use of the Military, to include
· Posse Comitatus
· Federalized National Guard
· Titles 10 & 18
· Interagency Agreements -military as last resort
Limits and liability of the Military's use of force against civilians during WMD-CM
Analysis
The working group of 2002 pre-dated the IOB legal counsel's disclosed 2010 connection with the President's Intelligence Advisory board. The working group strongly suggests counsel had access to relevant legal documents and statutes after 9-11; and had or should have had the time to work with other legal counsel to later use the fruits of the working group research to properly provide IOB legal counsel inputs to the President's advisory board.
It remains unclear whether the IOB was provided adequate legal advice. It's unclear how intelligence gathering operations allegedly breached both Geneva and FISA without IOB legal counsel's comment, legal opinion, knowledge, or discussion. It's also unclear how legal opinions to the IOB were updated, revised, or drafted once information related to alleged FISA and Geneva breaches were disclosed in the open media; and how the IOB or PIAB adjusted their oversight of the President's intelligence operations coordinated through ODNI with NYPD.
Had adequate legal advice been given, arguably the IOB would have issued concerns related to the intelligence operations at Guantanamo and through FISA. We need access to the IOB legal counsel memos and the reports the President's Intelligence Advisory Board provided to the President after 9-11. This information will help the public understand how disclosures about alleged breaches of Geneva and/or FISA were or were not properly incorporated into PIAB and IOB oversight procedures, plans, rules, reports, opinions, and auditing.
One item from the NYPD files related to the Demographics Unit includes a
supervisory memo, with the following:
NYPD DU Memo Establishing Link With Outside Units, Agencies
"Notifications of duties or requests by other units or agencies are not correctly or promptly communicated to supervisors"
Analysis
There are important similarities between the subjects in the 2002 working group topics connected with the the 2010-era IOB legal counsel. The similarity relates to the interagency cooperation within the working group analysis, and the way that the NYPD Supervisory memo referenced outside agencies. Interagency coordination would require federal coordination, one the Congress and President jointly assigned through statute to ODNI as the central tasking agency for intelligence collection.
The federal interest in NYPD intelligence gathering relates to how that collected information would be used to support domestic combat operations on American soil.
Title 18 includes the following:
Legal Duties on Legal Counsel: Education, Training, Competence
Chapter 118: War Crimes
Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications
Analysis
The 2002-era working group included Statutes under Title 18, including FISA and Geneva compliance issues, not limited to prisoner treatment. IOB legal counsel in 2010 knew or should have known these legal standards because they were part of the 2002-era working group study. It remains unclear whether the IOB legal counsel memos to the President's Intelligence Advisory Board adequately incorporated these legal standards within memos provided to the IOB or PIAB.
There are
attorney standards of conduct related to an attorney standards of
competence and
diligence. Some of the
duties connected with government counsel relate to the timing of that representation in connection with the current legal issue or question.
Specifically, there are legal ethics related to the revolving door: When a government lawyer moves from government work to non-government work.
After WWII at Nuremberg, one of the Justice Trials focused on the liability of legal counsel in drafting unlawful memos, an issue raised against DOJ OLC legal counsel after 9-11:
Legal Liability Attached to Legal Counsel
He testified specifically that he could not imagine that any person in the Ministry of Justice or in the Party Chancellery or as a practicing attorney or a judge of a special (or) Peoples Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps
Source: Justice Trial, Nuremberg, after WWII
Analysis
There are relevant legal standards applicable to legal counsel when they provide memos to civilian leaders, and those legal memos fail to properly guide decision makers to properly enforce the laws of war, especially as they relate to the treatment of civilians; and/or when those legal memos are used to support operational plans designed to breach domestic law or the laws of war.
We do not know how the IOB legal counsel memos incorporated or did not incorporate an analysis of the relevant legal standards, as would be reasonably expected of competent legal counsel in the wake of the Justice Trial. A public review of the IOB legal counsel memos is required to review whether the memos did or did not properly meet or exceed the performance standards expected of legal counsel in the wake of the Justice trial.
This public interest is heightened given the US government's demonstrated disregard for Geneva and FISA. There are reasonable questions whether the IOB legal counsel memos were or were not adequate; and whether the President's Intelligence Advisory Board adequately met a relevant legal standard raised at Nuremberg.
It appears legal counsel should have had the opportunity to
· (a) review information collected through local law enforcement;
· (b) compare whether that collected information did or did not meet the FISA Requirements; and
· (c) examine whether NYPD-collected information was or was not related to their participation, knowledge, or reporting of Geneva compliance issues.
There is no dispute that
NYPD detectives were at Guantanamo; and NYPD personnel were connected with the Arar detention.
Before Arar was transferred through Jordan to Syria, DOJ provided a legal review of Syrian human rights compliance issues. That DOJ legal analysis re Syria was provided to Congressional Staff counsel connected with the Intelligence Committees.
Analysis
Nuremberg is precedent for holding legal counsel liable for drafting unlawful memos. There is no statute of limitations for war crimes. The liability for war crimes includes military, civilians, contractors, agents, and officers of the court.
The same legal counsel advising the President's Intelligence Advisory Board, was on working groups whose goal was to review the military options to confront civilians.
Counsel connected with the PIOB and IOB was assigned to working groups whose responsibilities, knowledge, and legal training required, obligated, or created a legal duty to review, in part, FISA and Geneva compliance issues related to intelligence operations, data collection, and the treatment of civilians.
Once the NYPD detectives attended interrogations at locations where there was prisoner abuse this created a legal duty on civilian leadership to ensure those intelligence collection methods and prisoner treatment programs were lawful.
Public interest has focused on the DOJ OLC missing memos, but there is less obvious public discussion of the legal counsel memos provided to NYPD, IOB, PIAB, or to ODNI.
Future Research
We would like to see some additional public discussion, FOIA analysis, and review of the legal memoranda provided to civilian leadership. There needs to be a better understanding of the legal analysis legal counsel provided to the President's intelligence advisory board, to include the Presidential programs to comply or not comply with the FISA requirements and Geneva treaty obligations.
Where are the legal memos from the IOB/PIAB legal counsel;
What information from the IOB/PIAB legal analysis relates to the use, retention, and transfer of NYPD-sourced information;
How did legal counsel distinguish between the following terms in the memos to the advisory board: Information, intelligence, national security information, data, databases, and public read files;
How did the prisoner abuses at Guantanamo factor into the legal counsel's analysis to the IOB on proper procedures to treat prisoners when collecting intelligence;
How did the FISA violations under the TSP factor into legal counsel's memos to the Advisory board;
Once NYPD FISA warrant requests were disapproved by DOJ AGs, what procedures did legal counsel recommend to the advisory board to ensure NYPD and local law enforcement personnel heeded the AG declinations;
What findings did legal counsel make related to the compliance procedures NYPD used when forwarding intelligence through ODNI to the President;
What working group recommendations did legal counsel include in legal memos to the President's intelligence advisory board related to the use of NYPD information when providing direction to the military when confronting civilians;
When did legal counsel first become aware NYPD personnel were connected with facilities where there was abuse of prisoners;
How did legal counsel factor into legal analysis to the President's advisory board issues related to working group findings, conclusions, legal analysis, or reviews of applicable statutes related to FISA, Geneva, and treatment of civilians;
When legal counsel learned DOJ AG had declined to approve, in some cases, NYPD requests for FISA warrants, what discussions did legal counsel have with the intelligence committee staff counsel assigned to the Senate and House intelligence committees;
What rules, procedures, or standards did the IOB legal counsel memos establish to ensure, among others things (1) non-approved requests for FISA wiretaps were not improperly used, and were not forwarded to the telecoms by NYPD, NYPD agents, personnel working indirectly for NYPD, or persons working through ODNI on behalf of the President, CIA, NYPD, or Congress; and (2) no FISA intercepts occurred on the NYPD-requested target after the DOJ AG refused to approve the NYPD request for the FISA warrant?
Conclusion
The NYPD-CIA domestic intelligence operations are a subset of larger plans and programs to support warfighters during domestic operations. The working group topics show that there are larger legal issues connected with the local law enforcement intelligence gathering: The lawfulness of military operations without adequate coordination with civilians; and the robustness of multi-agency agreements to provide support during domestic operations. We need to know now -- not after the damage is done -- whether the President and Congress plan to implement unconstitutional domestic operations on the back of questionable intelligence gathering operations.
The President has not disputed that the CIA actively provided NYPD with material support to the NYPD domestic surveillance program. Whether that cooperation, plan, and program was or was not lawful is one which the IOB legal counsel has not been publicly challenged to respond by way of providing relevant legal memos to the President's Intelligence Advisory Board.
Indeed, before we can believe that the intelligence operations "were" or "were not" lawful, we need to understand what the legal counsel said was or wasn't lawful; then examine what was really going on. We haven't the former; and only assertions about the latter. That is not adequate oversight.
Who Watches the Watchers?: Quis custodiet ipsos custodes?
There is no disputing that NYPD personnel were present at facilities where grave breaches of Geneva are alleged to have occurred; and that NYPD personnel regularly requested -- and were denied -- FISA warrants through DOJ OLC. What is unclear is whether legal counsel properly meshed their demonstrated legal knowledge and experience with the emerging facts: Requirements to comply with the Constitution, Geneva, and FISA; and a legal duty to ensure that proper legal advice was given to the President's intelligence advisory board.
There is no disputing that IOB legal counsel was or should have been aware of the legal compliance standards within federal law, Geneva, FISA, and the Constitution. What is unclear is whether that legal knowledge adequately dovetailed the emerging fact patterns with appropriate legal advice given in secret to the IOB.
There are several legal questions which have not been adequately addressed: What method did the President's Intelligence Advisory Board use to review the cooperation between the NYPD and CIA; how did the NYPD operations square with federal law; and what reforms are required to adequately monitor local law enforcement intelligence operations. One important step is to examine the legal memos IOB legal counsel provided to the President's Intelligence Advisory Board.
Some might assert that many "support" the intelligence gathering efforts of the NYPD. That support has no relationship with the unanswered question: Was that operation within the contours of the Constitution. Once NYPD operations move beyond New York City, that legal interest expands beyond what New Yorkers think, and should include a legal review of what the Constitution says.
What may be popular may not necessarily be lawful. We are to defend the Constitution, and the right of the citizenry to have both an informed and misinformed opinion. However, prudent governance -- through power We the People delegated to this government -- is linked with informed citizenry; tyranny is linked with ignorance and blind deference.
There is no disputing that the question of public support is secondary to the legal compliance question: Was or was not the program within the contours of the Constitution? That legal compliance question is not confined to exclusive NYPD decision makers, especially given the multi-jurisdictional intelligence gathering operations of national law enforcement working with NYPD. Whether New Yorkers believe it is "OK" for illegal activity to occur in another state has no relationship with that other state's right to have a republican form of government based on the rule of law, not public opinion.
Commissioner Kelly is reported to have asserted that the intelligence operation was lawful; but that the "bottom line" is what matters:
Legal Compliance Review: What's the Real Bottom Line?
Chris Smith, NYMag: "Sure, he wants his cops to obey the law—and Kelly is adamant that the Muslim surveillance program was well within it—but it is the bottom line that matters."
Source
Kelly, the President, and the IOB have the burden to demonstrate their activities were lawful and deserve
Constitutional support and defense. The IOB legal counsel memos will help understand what was the real bottom line: Public relations, security, national defense, or the Constitution.
Efforts to defend the Constitution using unlawful methods hardly inspire the confidence in the legal compliance and oversight program of the President's Intelligence Advisory Board. If the memos had a deferential approach to the President, DOJ OLC, and the NYPD interests, then appropriate reforms are needed to ensure proper deference is given to the higher interest: The Constitution.
We need to find out if the President's intelligence advisory personnel are or are not adequately doing their job in secret; or whether reforms are required to ensure war fighters are adequately supported with lawfully gathered information from American citizens. Until we know more, it's hardly comforting that New Yorkers "support" something we do not adequately understand, nor can compare to the existing legal requirements.
It's been more than ten (10) years since 9-11. Perhaps if the weather is favorable, the public might be inclined to consider what's been happening. But the unfavorable winds have no bearing on the eternal duty to defend the Constitution against domestic enemies.