Another Tortured Memo from Jay Bybee

Nine years after he left his post as Director of the Office of Legal Counsel (OLC) in the George W. Bush administration, Jay Bybee’s legal opinions still have the capacity to surprise.

September 26, 2012

Nine years after he left his post as Director of the Office of Legal Counsel (OLC) in the George W. Bush administration, Jay Bybee’s legal opinions still have the capacity to surprise. It was Bybee, along with Deputy Assistant Attorney General John Yoo, who authored the notorious “torture memos,” which created the framework permitting intelligence agencies to use interrogation techniques – such as waterboarding – which are widely considered torture.

Soon after the 2001 PATRIOT Act was passed, Bybee was asked for his opinion about some of the Act’s information-sharing provisions. Specifically, the White House asked how the Act changed the extent to which grand jury information could be shared with the president and other federal officials. Bybee, now a judge on the U.S. Court of Appeals for the Ninth Circuit, crafted a previously undisclosed interpretation of the law that is breathtaking in its sweep.

That July 2002 memo was recently obtained by the Brennan Center through a FOIA request.

The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.

The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.

The PATRIOT Act did set some limits: under the new intelligence-sharing provision, a judge had to be told of the disclosures, and recipients of the information could use it only for their official duties. But the OLC would read the nondescript word “under” to exempt major categories of information-sharing from the already relaxed reporting and accountability requirements of the Act.

A series of OLC memos over the decade before Bybee’s 2002 memo had concluded that the president’s constitutional authority created implicit exceptions to the disclosure limitations and the secrecy requirements of the existing grand jury rules. Bybee’s memo doubled down on this extension of executive power, however, offering an almost impossibly narrow reading of the law’s remaining oversight and accountability mechanisms.

First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.)  In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.

Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough.  The memo goes much further, however.  Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court.  That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement. 

And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose.  Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply. Although the memo notes that the Privacy Act, classification rules, or other regulations might limit the use of the information, the Privacy Act is riddled with exceptions, and both classified and unclassified information could be vulnerable to misuse by federal authorities.

The practical implications of Bybee’s reasoning are grave. Imagine the following hypothetical: a witness reveals that Occupy Wall Street activists are planning a series of peaceful protests during a UN meeting in New York City.  The prosecutor believes the information is critical to national security, particularly in light of the Department of Homeland Security’s focus on Occupy Wall Street.  She decides to share it with the president’s chief of staff.  The president’s chief of staff looks at the information and passes it on to DHS and the FBI. The FBI uses the information to open an assessment of the activists and to put the grand jury witness under physical surveillance as a prelude to pressuring him to become an FBI informant. DHS uses the information to monitor the activists’ Twitter feeds and public Facebook pages.  In addition, a senior FBI official passes the information to a friend who is CEO of a bank that has been the subject of Occupy Wall Street protests.  The bank then launches a preemptive advertising campaign to burnish its reputation and discredit the activists.  Under Bybee’s astonishingly broad interpretation, this entire sequence is – absent an independent prohibition on sharing the information – not only entirely permissible but entirely secret. 

This memo guts what was left of the criminal grand jury information-sharing restrictions.  It erases all but the last vestiges of judicial oversight and public accountability. And, as far as is publicly known, it is still in effect. The Obama administration, with its stated commitment to transparency, should disavow Bybee’s indefensibly broad reading.