NSA’s “Presumption of Regularity”

As you’ve probably heard, the most striking part of the October 3, 2011 FISA opinion finding NSA’s collection violated the Fourth Amendment is Footnote 14.

The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

In March, 2009, the Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from [redacted] in the so-called “big business records” matter “ha[d] been premised on a flawed description of how the NSA uses [the acquired] metadata,” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime.” Docket [redacted] Contrary to the governent’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.” Id.

Two more entirely redacted substantial misrepresentations follow.

Footnote 32 reveals how, after NSA did a review of the communications the FISC ultimately found to violate the Fourth Amendment, the FISC caught it in downplaying the number of affected communications. After it sent the NSA back to new analysis, the problem grew from 2,000 to 10,000 a year to 48,000 to 56,000 a year. I guess the FISC found, like I have, that you can’t trust the biggest math organization in the world to do basic math.

Yet in spite of the fact that this opinion lists three substantial misrepresentations the NSA had made in recent history and caught the NSA in bad math, here’s how it decided it could trust the government’s assurances that it didn’t use this abusive communication to target non-targeted people.

Therefore, the Court has no reason to believe that NSA, by acquiring the Internet transactions containing multiple communications, is targeting anyone other than the user of the selected tasked selector. See United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

I’m not surprised FISC invoked this (especially not surprised that John Bates, who can be very deferential, did). It is the law.

But (as the case of Adnan Latif showed) we keep extending the presumption of regularity to the government in spite of abundant evidence we shouldn’t.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

19 replies
  1. What Constitution says:

    Would have been fun to be in the courtroom to hear the government lawyer respond to the judge’s question about whether the presumption of regularity should be called into question by the government’s repeated falsehoods with this from Duck Soup: “Who ya gonna believe, me or your own eyes?”

    But that must have been the explanation. And FISC bought it? Maybe now it’s time to revisit that presumption, eh? Sure — next time this happens, maybe the judge will say “fool me once, shame on you; fool me twice, uh, can’t get fooled again.” Either that, or “look forward, not backward” — that one hasn’t been used in the post-Snowden shuffle yet, has it?

  2. EH says:

    I guess it should come as no surprise, then, that an agency who lied to the FISC would also lie to Congress. Balls.

  3. scribe says:

    Ahem.

    See United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

    Where are you going to get “clear evidence to the contrary” in a non-adversarial context? The very existence of the presumption stems from the concept that, if the government conduct is “irregular”, their adversary is going to call them on it and put before the court “clear evidence to the contrary”. Given that the government fights – successfully, so far – tooth and nail to preclude anyone from having standing to address these programs, and to preclude anyone other than the government from even going into the FISC, an intellectually honest judge would have to deny the government any presumption of regularity.

    But, given Roberts is himself intellectually dishonest as a central character trait, one can’t expect him to pick people dissimilar from himself for what has turned out to be the most important court in the land.

    Just saying.

  4. earlofhuntingdon says:

    “Presumption of regularity”? Does that mean that when the pattern of government lying is long and consistent and material enough, that the presumption will be that the government is lying? Or does that presumption work only the other way round?

  5. der says:

    The adversary that started this “welcomed debate” is in Russia…giving those dirty commies all the how-to secrets to programming my home security system.

    Putting the 2hops-presumption of-meormylyingeyes aside, these questions ask for answers: How many 6 figure $ contractors could track the Commander-in-Chiefs messages? Does the NSA know what Snowden took? And are those state secrets Miranda was passing for free to al Qaeda at Heathrow’s Cinnabon just a copy of what they already purchased from Joe Sixpack, the guy in the cubicle next to the guy that sold them to the Israelis?

    Ruled by fools.

  6. Snoopdido says:

    In Marc Ambinder’s latest piece of his analysis of FISC Judge Bate’s opinion – “Thousands of Americans’ e-mails” – http://theweek.com/article/index/248567/thousands-of-americans-e-mails, he comes to a conclusion that seems unsustainable by the now public record. He states:

    “I must emphasize here: Human analysts were not reading e-mails. Computers would read some of them, including those that referenced a foreign target.”

    This conclusion contradicts the very clear statement of FISC Judge Bates of “Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying.”

    Yes, the NSA (and perhaps the FBI and CIA) may have been running some automated queries via computer apps, but nowhere in the now public record of this FISC opinion does it confirm that analysts were not also running these illegal and unconstitutional queries.

    For someone who claims to be attentive to detail on this subject, Ambinder seems to be trying very hard not to see any of the cracks in the foundation of his own beliefs.

  7. der says:

    Really? When I think about all of the propaganda I’ve listened to over the Cold War years I think the one person who really must be pissed about all of this is John le Carre. Carefully and slowly building from page 1, chapter after chapter after chapter of spys and moles and secrets to find out now here in the 21st Century of computers and algorithms and unbreakable codes the most powerful secret security network imagined gives a GED passing 20 something computer nerd access to it all without a wink or a nod by the end of page 3.

    Our fetishistic free market, privatizing, government’s the problem best and brightest are incompetents. The whole world is laughing, not at them, but at us for letting them do it. This “fun” GCHQ says we need to stop having is a lame attempt at keeping us in the dark, still. You reap what you sow.

  8. orionATL says:

    these comments are not happy comments, i understand that.

    nonetheless, reading them is very comforting to me for this reason:

    these are the bitter, angry, mistrustful comments of nine american citizens who really care deeply about their country and who cannot be bought off with teevee/radio pablum.

    none seem inclined to forgive and forget, or to mothball their strong skepticism.

    that’s a good start.

  9. greengiant says:

    And not a peep about the intelligence community infecting millions of US computers with their malware and zero day exploits, Duqu, Flame, Mahdi, Gauss, Wiper, Shamoon … and could we guess that co conspirator Microsoft is downloading new zero day exploits monthly on every “patch” Tuesday.

    Whether tricks the Iranians etc learned from the US, third party cowboys, or just run amuck US contractors who if it is illegal in the US, just set up shop in the cloud or overseas wherever the lawyers tell them they are stateless non persons who therefore could never commit a crime, since they aren’t persons.

  10. Hejira says:

    Hardly a peep from the Senate Intelligence Committee – DiFi? Congress – Pelosi? Crickets……….. that’s what.

  11. omphaloscepsis says:

    https://www.senate.gov/artandhistory/history/minute/Church_Committee_Created.htm

    “Historian Henry Steele Commager assessed the Committee’s legacy. Referring to executive branch officials who seemed to consider themselves above the law, he said, ‘It is this indifference to constitutional restraints that is perhaps the most threatening of all the evidence that emerges from the findings of the Church Committee.’ ”

    La plus ca change, and all that.

  12. orionATL says:

    @omphaloscepsis:

    yes!

    after all, “the constitution is just a god-damned piece of paper”.

    thanks for the reminder that this stuff just cycles and cycles and cycles again.

  13. Snoopdido says:

    From the DNI’s “August 2013 — Semi-Annual Assessment of Compliance with the Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of National Intelligence” – http://www.dni.gov/files/documents/Semiannual%20Assessment%20of%20Compliance%20with%20procedures%20and%20guidelines%20issued%20pursuant%20to%20Sect%20702%20of%20FISA.pdf reports that compliance issues still continue to this day.

    From page 6:

    “(U//FOUO) In summary, the joint team finds that the agencies have continued to implement the procedures and follow the guidelines in a manner that reflects a focused and concerted effort by agency personnel to comply with the requirements of Section 702 during this reporting period [June 30, 2012 through November 30, 2012]. As in the prior Joint Assessments, the joint team has not found indications in the compliance incidents that have been reported or otherwise identified of any intentional or willful attempts to violate or circumvent the requirements of the Act. The number of compliance incidents remains small, particularly when compared with the total amount of targeting and collection activity. To reduce the number of future compliance incidents, the Government will continue to focus on measures to improve communications, training, monitoring of collection systems, as well as monitor purge practices and withdrawal of disseminated reports as may be required.3 Further, the joint oversight team will also monitor agency practices to ensure appropriate remediation steps are taken to prevent, whenever possible, reoccurrences of the types of compliance incidents discussed herein and in the Section 702 report.”

  14. qweryous says:

    At some point will the presumption of regularity require inverting the definition of the phrase “compliance incident”?

    To wit: “compliance incident” may need to be redefined to be accidental or purposeful compliance with whatever laws* or regulations* which are in place. Alternately “compliance incident” may be the accidental or purposeful performance of what has been/is about to be the subject of testimony*.

    * Definition of the word “law” may also be under review as this is written.
    * Definition of the word “regulation” may also be under review as this is written.
    * Definition of the word “testimony” may also be under review as this is written.

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