FISC Judges Should Threaten NSA with Criminal Prosecution More Often

This James Bamford description of NSA efforts to avoid criminal prosecution in a 1975 investigation convinced me to point to evidence that then FISA Chief Judge John Bates — who is normally fairly deferential to the Executive Branch — cowed the government with threats of criminal prosecution.

The story starts in the October 3, 2011 opinion. After having laid out how the government was collecting US person data from the switches, Bates noted that the government wanted to keep on doing so.

The government’s submissions make clear not only that the NSA has been acquiring Internet transactions since before the Court’s approval of the first Section 702 certification in 2008,15 but also that NSA seeks to continue the collection of Internet transactions.

Noting that this collection had been going on longer than the 3 years the government had been using Section 702 of the FISA Amendments Act to justify its collection likely references a time when the NSA — led by Keith Alexander as far back as 2005 — was collecting that US person information with no legal sanction whatsoever as part of Dick Cheney’s illegal program.

Then, in footnote 15, Bates notes that sharing such illegally collected information is a crime.

The government’s revelations regarding the scope of NSA’s upstream collection implicate 50 U.S.C. § 1809(a), which makes it a crime (1) to “engage[] in electronic surveillance under color of law except as authorized” by statute or (2) to “disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized” by statute. See [redacted] (concluding that Section 1809(a)(2) precluded the Court from approving the government’s proposed use of, among other things, certain data acquired by NSA without statutory authority through its “upstream collection”). The Court will address Section 1809(a) and related issues in a separate order. [my emphasis]

Now, I’m particularly interested in the redacted text, because it appears some FISC judge has had to issue this threat in a past (still-redacted) opinion. That threat may have applied to this same upstream collection, but from the time before the government pointed to FAA to justify it (again, Alexander’s tenure would overlap into that illegal period).

In the days after Bates’ ruling, the government considered appealing it. On October 13 (10 days after his initial rule) Bates gave the government a schedule for responding to his 1809(a) concerns. In its first response, the government said 1809(a) didn’t apply. But then, on November 22, they finally responded to his concerns in earnest.

The Court therefore directed the government to make a written submission addressing the applicability of Section 1809(a), which the government did on November 22, 2011. See [redacted], Oct. 13, 2011 Briefing Order, and Government’s Response to the Court’s Briefing Order of Oct. 13, 2011 (arguing that Section 1809(a)(2) does not apply).

It’s unclear what the government argued in that November 22 submission, or what the redacted title is (the November 30, 2011 opinion references a November 29 submission). But shortly thereafter, the government started taking action.

Beginning late in 2011, the government began taking steps that had the effect of mitigating any Section 1809(a)(2) problem, including the risk that information subject to the statutory criminal prohibition might be used or disclosed in an application filed before this Court.

At first, the government claimed it couldn’t segregate the illegal data, but would make sure it was subjected to some of the limitations imposed with the new minimization procedures.

Although it was not technically feasible for NSA to segregate the past upstream collection in the same way it is now segregating the incoming upstream acquisitions, the government explained that it would apply the remaining components of the amended procedures approved by the Court to the previously collected data, including (1) the prohibition on using discrete, non-target communications determined to be to or from a U.S. person or a person in the United States, and (2) the two-year age-off requirement. See id. at 21.

By April 2012, however, they decided (they claimed, in oral form — any bets we learn this oral assurance was false?) to come up with a better solution — purging what they could identify entirely.

Thereafter, in April2012, the government orally informed the Court that NSA had made a “corporate decision” to purge all data in its repositories that can be identified as having been acquired through upstream collection before the October 31, 2011 effective date of the amended NSA minimization procedures approved by the Court in the November 30 Opinion.

Then they went through and figured out what reports derived from the tainted collections, and assessed whether they could be individually defended or not.

In the end, Bates never ruled on whether the government was — as they claimed — exempt from rules limiting the collection and dissemination of illegally collected data.

Under the circumstances, the Court finds it unnecessary to further address the arguments advanced by the government in its November 22, 2011 response to the Court’s October 13, 2011 briefing order regarding Section 1809(a), particularly those regarding the scope of prior Section 702 authorizations.

(The government likes to introduce precedents about “good faith” Fourth Amendment violations in situations like this, which is, I suspect, some of how they claimed to be immune from the law.)

The FISC as a whole likely would work far better as an oversight vehicle if Bates had taken action regarding these prior lies and the tainted collection.

Still, what Bates forced the government to do is far more than the FBI did in an equivalent situation, when DOJ Inspector General Glenn Fine found a bunch of illegally collected US person phone data obtained using exigent letters; most of that material never got expunged.

All of which offers a lesson in effective oversight. The government appears to claim it is not bound the rules that bind precisely this kind of collection. In an opinion expressing consternation with the government’s serial lies, Bates made it clear he believes at least some laws limit the government.

The end result is not perfect: the same guy who oversaw that illegal collection before it had any legal cover, Keith Alexander, still runs our nation’s spying machine. But without at least some leverage, you can’t exercise oversight.

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.

6 replies
  1. Bob says:

    Is there some sort of DDoS going on against this site today? I ask because about 5 times I’ve received this message: Error in establishing database connection…

    What gives?

  2. peasantparty says:

    That is exactly why I asked if there are more OLC memos!

    Excellent, Marcy. Excellent Muckraking here that nobody else is doing!

    The two James Bamford articles helped, but I still think there is a lot more to uncover. I also think with all the technological advancements they have that they CAN identify the incoming traffic from which country it is collected. We have learned that there are at least 4 hubs/offices in the US. I stated before my suspicions of the quadrant locations which could be used to not only capture incoming US metadata, but the locations appear set to catch foreign as well.

    ie: China/Russia to one, Mexico and Latin America to one, Canada and beyond to one, EU and Middle East to one into the US.

    Remember that Snowden was working in a Hawaii location, and on the map of NSA centers we saw, that location was not pinpointed. That makes me believe there are more collection centers.

  3. Snoopdido says:

    As I commented about a couple of days ago, the internet traffic captured by the NSA triggers likely included MCTs at the very inception of the NSA upstream collection back in 2003.

    MCTs didn’t miraculously materialize out of thin air like some kind of Higgs Boson in 2008.

    Therefore NSA analysts certainly, and more importantly, likely NSA upper management (both then NSA Director Hayden as well as his successor Alexander) knew that they were collecting MCTs with innocent person data for more than the 3 years before they informed the FISC. More likely 8 years of NSA knowledge.

    Given the unarguable numerous instances of criminality in the Bush Department of Justice, there is a good chance that it too knew of the NSA’s MCT collection.

  4. peasantparty says:

    @Snoopdido: Yep, for years! I hate to break it to you, but we still have the Bush Justice Dept. The only changes that were made was Holder. All other offices and agencies connected are still held by Bush I and Bush II implants.

  5. greengiant says:

    I think it is safe to assume the NSA has beam splitters on all fiber optics entering the US and all internet exchanges in the US. In the distant past, Mark Klein reported other facilities with fiber optic beam splitters besides the one in San Francisco.
    http://en.wikipedia.org/wiki/Room_641A
    The diagram released and the small square footage of the San Francisco room 641A suggests a minimal on site data analysis and storage capability, the use of “NARUS” or whatever custom hardware not withstanding.
    I do not “know” and have not “heard” anything about what the intelligence community is physically doing at these exchanges. Long ago the installed fiber optic bandwidth was exponentially increased by using multiple wavelengths for communications. So my basic assumption is that the intelligence community is forwarding all net traffic to other sites for storage and analysis. If they could they did. In their paradigm ethical and legal questions would only arise at best with human access to the contents. My bet is that Snowden, Marcy, and the press have only seen a shred of what the intelligence community has done.

  6. peasantparty says:

    @greengiant: Agreed!

    And I still want to see the rest of the memos and OLC papers.

    Alexander, Foghorn Leghorn can strut out and say anything he wishes. I still will never believe another word from NSA.

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