Declassified has learned that the Obama administration has now asked a career Justice Department lawyer, Matthew Olsen, to become NSA’s new general counsel, and that he has accepted the post. An official familiar with the appointment, requesting anonymity when discussing sensitive information, says Olsen won’t actually move into the position until security checks are completed, a process that could take a few weeks.

Olson, Hosenball adds, has experience in surveillance law at the Justice Department’s National Security Division.

The President must notify Congress in advance about the threat and the emergency measures that will be taken to mitigate it. Any emergency measures imposed must be the least disruptive necessary to respond to the threat. These emergency measures will expire after 30 days unless the President orders an extension. The bill does not authorize any new surveillance authorities, or permit the government to “take over” private networks.

Something I’ll be reading for: what the bill says about the military’s new Cyber Command operating in support of the Department of Homeland Security. Previous testimony from Gen. Keith Alexander, CYBERCOM’s chief and the head of the National Security Agency, indicated that the military should only get involved in cyber attacks on civilian infrastructure in cases of real emergency. But the framework for judging “real emergency” has been To Be Determined for some time now.

According to an “NSA spokesperson” who insisted on anonymity — you would think the job of a spokesperson is to speak openly to the media, but that’s NSA for you — Vito Potenza, the NSA’s last general counsel, retired from the agency in October 2009.

If Potenza’s name makes you say, “Don’t I know that guy from the sordid history of the Bush administration’s warrantless domestic surveillance programs?” then you might be a particularly attentive reader of Bart Gellman’s book Angler, an investigative biography of Dick Cheney’s vice presidency. One particularly vivid section of the book recounted the aftermath of a December 2003 request from Potenza, then the agency’s acting general counsel, and the agency’s inspector general to review the legal documentation undergirding the controversial surveillance activities. David Addington, then Cheney’s lawyer, actually screamed at the guy.

So Potenza has been out for the past nine or so months. I didn’t get an answer about the circumstances surrounding his retirement. But since he’s been gone, “the duties of the general counsel have been covered by seasoned, senior attorneys in NSA’s Office of the General Counsel,” the spokesperson said. And presently, “NSA is conducting a comprehensive search for stellar candidates who embrace its mission to protect America’s national security systems and produce foreign signals-intelligence information.”

As a veteran intelligence observer told me yesterday:

“The absence of a general counsel introduces a shade of uncertainty into the process which needs to be correct,” said Steve Aftergood, an intelligence policy expert at the Federation of American Scientists. “NSA operations are law-intensive activities. They don’t make a move without clearing it with their legal people.”

The spokesperson did not address a question I had about whether and how the absence of a general counsel affects day-to-day surveillance activities by the agency.

If you scour MSN CareerBuilder — in employee searches as in other endeavors, the agency casts a wide net — you’ll find the NSA advertising its need for a new top lawyer. Potential candidates will “Interpret all statutes, Presidential Directives, and Executive and Legislative Branch Regulations, and provide legal advice and counsel to the Director and Senior Leadership Team with respect to the authorities for NSA/CSS cryptologic activities and the conditions and restrictions thereon.” So it’s not just James Clapper, the undersecretary of defense for intelligence, who may get a new senior intelligence job shortly.

What this means for NSA operations is unclear. Just last week, Director Keith Alexander gave a rare speech at the Center for Strategic and International Studies that underscored the centrality of lawyers to the agency’s wide-ranging surveillance operations. “Every action that we take,” Alexander said, “we have legal reviews of it all the way up and down.” I’m awaiting formal comment from NSA on the vacancy and the circumstances behind it; presumably it has an acting general counsel in place.

And this is a delicate time for NSA to be without a senior legal adviser. Last month, the military officially created the first-ever military command to operate in cyberspace, U.S. Cyber Command, and it’s co-located with the NSA at Fort Meade in Maryland. (Alexander is also Cyber Command’s first leader.) In April, the former director of national intelligence, Dennis Blair, conceded that the legal and policy authorities distinguishing Cyber Command from the intelligence community have yet to be fleshed out.

“The absence of a general counsel introduces a shade of uncertainty into the process which needs to be correct,” said Steve Aftergood, an intelligence policy expert at the Federation of American Scientists. “NSA operations are law-intensive activities. They don’t make a move without clearing it with their legal people.”

Alexander will remain in his old job, head of the National Security Agency. Now to figure out where the legal and policy boundaries between CYBERCOM and the intelligence community actually are.

“Transparency is important,” Alexander said, and pointed to how as NSA director he created a directorate for legal compliance — his tenure, of course, came in the wake of the Bush administration’s NSA-based warrantless surveillance program, which a federal judge recently ruled was riddled with illegality — and he would carry that effort over to CYBERCOM. “We take an oath to the Constitution,” Alexander said, and Udall moved on.

So the short answer to Udall’s question was … no.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

Marcy thinks the Justice Department will decline to appeal, thereby letting Judge Vaughn Walker’s determination of illegality stand, but will also keep “details of how and what it did secret” and forestall a challenge on the limits of the government’s authority to determine whether certain disclosures jeopardize national security. (The so-called ‘State Secrets’ doctrine.) Her argument has the virtue of providing the administration with a political setback for its resurgent adversaries from the Bush era — who are fighting to stop the closure of Guantanamo Bay or link it to the abandonment of civilian trials for terrorists — while preserving its own legal authority.

But there’s a problem. The NSA and its predecessors also have a long history of spying on huge numbers of people, both at home and abroad. During the Cold War, the agency worked with companies like Western Union to intercept and read millions of telegrams. During the war on terror years, the NSA teamed up with the telecommunications companies to eavesdrop on customers’ phone calls and internet traffic right from the telcos’ switching stations. And even after the agency pledged to clean up its act — and was given wide new latitude to spy on whom they liked – the NSA was still caught “overcollecting” on U.S. citizens. According to The New York Times, the agency even “tried to wiretap a member of Congress without a warrant.”

All of which makes the NSA a particularly untrustworthy partner for a company that is almost wholly reliant on its customers’ trust and goodwill. We all know that Google automatically reads our Gmail and scans our Google Calendars and dives into our Google searches, all in an attempt to put the most relevant ads in front of us. But we’ve tolerated the automated intrusions, because Google’s products are so good, and we believed that the company was sincere in its “don’t be evil” mantra.

This is really some week to be a civil libertarian.

The big reveal is that Blair, the nominal overall intelligence chief, wants a much bigger role over the CIA’s drone strikes in Pakistan.

Since the CIA’s establishment in 1947, its officers have had a direct line to the National Security Council. No cut-outs, no go-betweens.  Blair and his deputies believed that the CIA’s National Clandestine Service was failing to provide a full picture of several of the agency’s largest covert collection and special activity programs. In particular, the DNI would often find out about CIA-initiated drone strikes in Pakistan well after the fact. The CIA was conscientious about briefing the National Security Council, but did not bother to loop in the DNI.

That won’t happen any longer. The CIA will keep its unfettered access to national security principals, and the DNI still doesn’t have the authority to order covert action programs, but the White House is now requiring the CIA to fully brief the DNI on all covert action programs and will seek from the DNI regular assessments of whether any program fits in with the nation’s intelligence strategy, which is set by Blair. Since Blair briefs Congress more often than Panetta does, it makes sense for Blair to know as much about covert action programs as CIA briefers would.

That might sound like bureaucratic box-checking. But for years, the DNI’s office — long before Blair took over — has quietly absorbed many intelligence analysts who look at long-term geopolitical questions, rather than analyzing the crises of the moment. Since the big question with the drone strikes is whether they ultimately enrage Pashtun Pakistanis by the civilian casualties they create — and therefore raise the question of whether the strikes are counterproductive — it’s not inconceivable that Blair’s office would take a more skeptical view of the program’s value than the CIA does.

But that’s not the only big piece of news Ambinder uncovers. Check this out:

The conflict became public earlier this year, after the CIA protested when the Director of National Intelligence appointed a senior National Security Agency representative to be the DNI’s representative in Kurdistan. Traditionally, the CIA’s chief of station had served as the foreign nation’s principal intelligence representative. But the NSA has a bigger footprint in Kurdistan, and the DNI decided that he would be better served by appointing an NSA officer to be his representative.

The conflict is not new. But the fact that it took place over Iraqi Kurdistan most definitely is. And the additional fact that Kurdistan is home to a National Security Agency presence is big big news. I would bet a lot of money that such a presence is geared toward some serious spying on nearby Iran.

Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

[Law1]Those concerns led Holder in September to announce a new policy that he said would limit the Justice Department’s reliance on the state secrets privilege. When he asked the federal court in San Francisco to dismiss the Shubert case in October, Holder said he was asserting the privilege in accordance with that new policy, after “following a careful and thorough review process” and “only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”