1,186 Days into IG Report Covering Dragnet, Leahy Calls for Another

As I’ve been tracking, DOJ’s Inspector General Office — now led by Michael Horowitz — has been working on a report on the use of Section 215 and Pen Register/Trap and Trace authorities up through 2009 for 1,186 days, well over 3 years. We have yet to see that outsider review of all the problems the NSA admitted in 2009, 4 years ago, and so NSA’s incredible claim it was too stupid to know what it was doing has been accepted unquestioningly.

On Monday, Patrick Leahy and several other Senate Judiciary Committee Senators called on the Intelligence Committee Inspector General, Charles McCullough, to conduct a similar inquiry for the period since 2009.

Recently declassified documents appear to reveal numerous violations of law and policy in the implementation of these authorities, including what the FISA Court characterized as three “substantial misrepresentation[s]” to the Court.  These declassified documents also demonstrate that the implementation of these authorities involves several components of the Intelligence Community (IC), including the National Security Agency, Department of Justice, Federal Bureau of Investigation, Central Intelligence Agency, and the Office of the Director of National Intelligence, among others.

We urge you to conduct comprehensive reviews of these authorities and provide a full accounting of how these authorities are being implemented across the Intelligence Community.  The IC Inspector General was created in 2010 for this very purpose.  Comprehensive and independent reviews by your office of the implementation of Sections 215 and 702 will fulfill a critical oversight role.  Providing a publicly available summary of the findings and conclusions of these reviews will help promote greater oversight, transparency, and public accountability.

In conducting such reviews, we encourage you to draw on the excellent work already done by the Inspectors General of several agencies, including the Department of Justice, in reviewing these authorities.  But only your office can bring to bear an IC-wide perspective that is critical to effective oversight of these programs.  The reviews previously conducted have been more narrowly focused – as might be expected – on a specific agency.

In particular, we urge you to review for calendar years 2010 through 2013:

  • the use and implementation of Section 215 and Section 702 authorities, including the manner in which information – and in particular, information about U.S. persons – is collected, retained, analyzed and disseminated;
  • applicable minimization procedures and other relevant procedures and guidelines, including whether they are consistent across agencies and the extent to which they protect the privacy rights of U.S. persons;
  • any improper or illegal use of the authorities or information collected pursuant to them; and
  • an examination of the effectiveness of the authorities as investigative and intelligence tools.

We’ll see how McCullough responds to this. My impression thus far has been that he is too close to the IC Agencies. Plus, he’s very busy conducting insider leak investigations.

But even though we’ve been waiting forever for the IG Report covering the earlier period, apparently Leahy has learned one thing from it. He gave McCullough a deadline this time.

Please proceed to administratively perform reviews of the implementation of Section 215 of the USA PATRIOT Act and Section 702 of FISA, and submit the reports no later than December 31, 2014.

If all goes well, this should provide a quasi-independent review of the programs before they get extended again in 2015.

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.

3 replies
  1. Peterr says:

    The deadline is before the extension would be voted on, but after the 2014 elections. Not sure what to think of that.

    Is it good to put this later, to allow it to stand on its own and create some momentum for change outside the election cycle, or will this neutralize the issue during the elections, allowing candidates to deflect things with a remark like “We are waiting for the ICIG report, and once that comes out, we’ll decide what to do.”?

  2. thatvisionthing says:

    Per Snoopdido/Charlie Savage ( http://www.emptywheel.net/2013/09/23/say-hello-to-our-new-friends-at-just-security/#comment-630786 ), Al Franken didn’t sign the letter. What ever happened to the Senate Judiciary Subcommittee on Privacy and Technology that he chairs? He gave a speech last year to the ABA about internet privacy and antitrust laws, excerpt below – then he was talking about Google and Facebook – what has he said since Snowden’s revelations? I haven’t heard, but from what he wrote then I’d have thought he’d have a lot to say and a lot of hearings to hold. Everything he said then needs to be looked at anew in light of NSA/FISA:

    http://www.huffingtonpost.com/al-franken/how-privacy-has-become-an_b_1392580.html

    How Privacy Has Become an Antitrust Issue
    Al Franken, U.S. Senator from Minnesota
    3/30/12

    Excerpt:

    Another challenge – not just for the antitrust community, but for anyone concerned with making and enforcing laws – has been the explosion of new technologies. As the chair of a new Judiciary subcommittee on privacy and technology, I’ve seen these challenges grow every day.

    In recent years, tech companies have developed an incredible array of great products. We can search the web, keep in touch with friends around the world, and more – all for free.

    But if you use Gmail – as I do – Google has a copy of every single email you’ve written on that service – as well as your friends’ replies. If you use Facebook – as I do – Facebook in all likelihood has a unique digital file of your face, one that can be as accurate as a fingerprint and that can be used to identify you in a photo of a large crowd.

    And if you use a cell phone – as I do – your wireless carrier likely has records about your physical movements going back months, if not years.

    Anyone who interacts with these corporations is out on a limb when it comes to legal protections for this very personal information: your words, your likeness, your whereabouts. That’s kind of, like, everything.

    [edited for length]

    Here’s the Senate Judiciary Committee (incl subcommittees) list of hearings and meetings for this session: I don’t see anything for Franken’s privacy and technology subcommittee at all: http://www.judiciary.senate.gov/hearings/index.cfm?t=session&p=hearings

    He didn’t even mention Yahoo’s new policy ( http://correntewire.com/common_household_remedies_request_126 ) that requires you to agree to be scanned in order to access your e-mail. As he said above, when you DON’T agree and want to move your mail elsewhere, where can you go?

    Franken: “[A]ccumulating data about you isn’t just a strange hobby for these corporations. It’s their whole business model. And you are not their client. You are their product.” I can’t develop my own e-mail service (and hello goodbye Lavabit), and I don’t want to be a product. Didn’t we have a Civil War that put a stop to buying and selling people against their will? Al? … Al?

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