In ruling for @CREWcrew in a FOIA case seeking an OLC memo related to whether Trump could be indicted for obstructing the Mueller investigation, Judge Amy Berman Jackson says the (Trump) DOJ lied to her by saying it was predecisional when the decision had already been made. /1
When DOJ grudgingly showed her the memo, she saw that it was about actually strategy and arguments for Barr to quash the idea, which he had already decided to do - not predecisional as DOJ had told her in a sworn affidavit./2
ABJ says the evidence in the record contradicts what DOJ said, and shows bad faith. /3
She links DOJ misleading her about the memo to how Barr was disingenuous the public about the Mueller report, as Judge Reggie Walton has previous explained in depth.…
Notably, in a separate FOIA case brought by the NYT for WH Office of Management and Budget docs related to the freeze on aid to Ukraine that led to Trump's first impeachment, the same judge said DOJ lied to her about their contents, too.…
Litigating FOIA cases -- where the govt says a doc falls under an exemption & so can be lawfully withheld -- relies upon DOJ & govt affiants being honest when describing its contents in sworn court statements. Here are two cases in which that system has demonstrably broken down.
Judges in FOIA cases should routinely demand to read the doc in question rather than deferring, sight unseen, to the government's claims about its contents when arguing that something is exempt and a case should be dismissed.
The sanction for discovering govt officials lied to the court should be more than ordering release of the doc. Limiting the penalty to release creates an incentive to lie about embarrassing docs: at worst, they will come out after a long delay that depleted their relevance. /end
P.S. Here's the ruling in the @CREWcrew case.…
P.P.S. In that same ruling in our FOIA case for the OMB/Ukraine/impeachment documents, Judge Amy Berman Jackson pointed out a third recent such discovery, in a February ruling by her colleague on the same district court for DC, Judge James E. Boasberg

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More from @charlie_savage

2 May
If you read Politico's oral history of Bin Laden kill operation (10 yrs ago) by @vermontgmg…
& want more: the story of 4 natsec lawyers told the secret whose edgy navigation around legal obstacles permitted it, adapted from my book…
Or for the absolute gluttons who want an even more fulsome account of their hyper-secretive deliberations (Attorney General Holder wasn't even told!), see these four sections of the Targeted Killings chapter of Power Wars /2…
The big/edgy legal issues included whether it was lawful to violate Pakistan's sovereignty without even asking it -- an ally that had assisted with other counterterrorism operations-- for help first to see if it was willing and able to carry out the raid itself or jointly; /3
Read 6 tweets
1 May
New and partly exclusive: FOIA lawsuits by NYT and ACLU win release of the drone strike rules Trump secretly revamped in 2017, plus what's up with the delay in the Biden administration's deliberations over coming up with its own direct-action policy.…
The Obama approach to drones was centralized and individualistic: high level interagency review of whether a specific target posed a threat to Americans./2
The Trump approach was looser/decentralized: they established standards for particular countries and let operators decide whether they had been met and whether an attack was warranted. Permitted killing based on status as member of enemy force, as opposed to individual threat./3
Read 9 tweets
21 Apr
Senators @RonWyden and @RandPaul, and in House @RepJerryNadler and @RepZoeLofgren, plus many cosponsors, introduce anticipated bill that would ban the US government from buying app data from brokers on things like people's locations without a warrant. /1…
Here's a story from January about the Defense Intelligence Agency buying commercially available databases containing location data from smartphone apps & searching them for Americans’ past movements without a warrant. /2…
This bill seems destined to become a proposed amendment to the larger bill on FISA reform and reviving Section 215 of the Patriot Act, if and when Congress gets around to picking that issue up again after it collapsed amid Trumpy chaos last year. /end…
Read 4 tweets
21 Apr
Good explanation by @TomRtweets on CIA-NSA dispute over how much the lack of sigint in the pool of available evidence should discount confidence in the CIA's assessment that Russia offered bounties in Afghanistan. Dovetails w/ NYT reporting since 2020.…
The facts - CIA analysts reached this assessment based on other types of evidence we have detailed, the Trump WH handled it strangely and then lied about whether he was briefed, and the NSA had lower confidence its based on concerns about sigint gap - are unchanged since 2020. /2
That the CIA (& NCTC) has moderate confidence in its assessment, meaning they think it is credibly sourced and plausible, and NSA (& DIA) has low confidence, w/ greater concerns over lack of sigint, is not new. It is the intelligence community status quo reported last summer. /3
Read 5 tweets
4 Apr
Guantanamo's crumbling, super-secret Camp 7 is kaput, Southcom announces. (The high-value ex-CIA detainees it housed, including 9/11 mastermind Khalid Shaikh Muhammed, have been transferred to Camp 5.)/1…
This article in December, a joint effort by @carolrosenberg, @EricSchmittNYT and myself, first put forward the chatter that closing Camp 7 and consolidating the detainee population in the 5/6 space was in the works. /2…
In honor of Camp 7's departure from current-events relevance, let me one last time post this link to what satellite imagery and rare fragments of discussion in declassified documents etc revealed about its nature. /end…
Read 8 tweets
19 Mar
In an already gratuitous tangent calling for overturning a key 1st Amendment precedent that protects the free press, 85-year-old Laurence Silberman seems to have lost the filter that counsels most judges against displaying a nakedly partisan demeanor.…
Silberman was Nixon and Ford admin official. He was a friend of Dick Cheney, who as WH chief of staff in 1975 wanted to make him the top WH domestic policy official, while Kissinger thought he should lead the CIA. (See Takeover p 49.) In 1985, Reagan made him into a judge. /2
In 1988, Silberman tried to give victory to the Reaganites' novel theories of executive power maximalism by writing an opinion striking down the independent counsel law and proclaiming the Unitary Executive Theory to be true. The Supreme Court disagreed, overruling him 7-1. /3
Read 5 tweets

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