John Bates Intervened in the Phone Dragnet Problems

Yesterday, I Con the Record released more records in response to the ACLU FOIA for records on the Section 215 program (though once again, they didn’t mention the FOIA).

Three of the documents provide more data points for a notable progression I laid out in this post, in which Reggie Walton appears to have shut down some collection from one telecom on July 9, 2009, reapproved it (including retroactively) on September 3, 2009, just in time for the Intelligence Community to claim Section 215 collection was central to the Najibullah Zazi investigation.

First, a July 2, 2009 notice to Walton provided the End-to-End review “for the Court’s information.” It had been completed on June 25 and provided to the Intelligence and Judiciary Committees on June 30. It was also included in the formal DOJ filing to Walton on August 19, which left the impression that DOJ had held it for two months before sharing it with the court. But this notice makes it clear Walton received a copy with only a slight delay (and the day before they delivered the first weekly report he had demanded). It also makes it clear he had gotten it, and probably read it, before whatever action he took on July 9. What may be the problematic collection (see page 15-16) apparently got reported to FISC before May 29 (no mention of a formal notice is included, though it seems to be addressed in the May 29 order). But there are other violations (such as the sharing described on page 17 that may involve Homeland Security) that appear to have been newly disclosed with this report.

In a second document — a September 10 notice to just the Senate Intelligence Committee (?!) that Judge Walton had reauthorized the bulk collection program on September 3 — reveals that on August 4, FISC Chief Judge John Bates had written Eric Holder a letter raising concerns. The notice portrays a September 1 demonstration for Walton, Bates, and Judge Thomas Hogan (who I believe was the only other FISC judge from the DC Circuit at the time) apparently at NSA as a response to Bates’ concerns. But the description of the demonstration also notes that,

The information was presented in the context of a current operation that concerns a potential threat to the U.S. homeland.

Remember, this was before (by 2 days) the Zazi investigation started. So this must reference something else, though it certainly didn’t sound all that urgent.

In any case, while it is unclear who got Bates involved (after all, it could have been the Administration, complaining that some of its production had been cut off), it is noteworthy he was involved, which provides a little more background to the frustration he expressed in his October 3, 2011 opinion accusing the government of signifiant misrepresentations on 3 occasions.

Finally, on October 21, in what must have been part of the PATRIOT Act reauthorization push, National Counterterrorism Center’s Michael Leiter and the NSA’s Assistant Deputy Director for Counterterrorism addressed the House Intelligence Committee. Along with their case for the program and a heavily glossed description of the problems with it (which they indicate had already been noticed in some form to the Committee), they described how tips from the dragnet “have contributed directly to the following specific cases,” plural. It includes an entirely unredacted description of the dragnet’s role in the Zazi investigation (without, for example, disclosing FBI already knew of Adis Medunjanin through travel documents to Pakistan where he and Zazi trained with terrorists). And it includes a shorter description of what must be at least one other case, which is entirely redacted. It’s possible, after all, that that second “success” (which is so credible we can’t know about it) is the ongoing threat referred to in the September 10 notice, which NSA used to scare FISC into reauthorizing the dragnet.

One more detail about the notice to HPSCI. It fails to mention that, less than 3 weeks after he reauthorized the dragnet, Walton learned — from DOJ, not NSA — of further information sharing violations. In other words, the HPSCI witnesses falsely portrayed the problems as fixed, when there were pending violations still being discussed between NSA and FISC.

There’s nothing enormous in these revelations, but they do add to the understanding of how grave FISC took these violations to be, and how partial was Congressional briefing on them. 


June 18: New DOJ report with additional violations

June 22: Judge Walton requires weekly reviews

June 25: End-to-End report finished

June 30: End-to-End report provided to Congress

July 2: End-to-End report provided to Walton

July 3: First weekly report

July 9: FISC appears to halt production, perhaps from one provider

August 4: Judge John Bates writes Eric Holder with concerns about phone dragnet

September 1: Judges Bates, Walton, and Hogan attend a demonstration of the phone dragnet, apparently at NSA

September 3: Walton reauthorizes bulk dragnet, including production from halted production

September 10: SSCI informed of reauthorization and Bates’ concerns

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7 replies
  1. bloodypitchfork says:

    quote:” FISC appears to halt production,…”unquote

    Don’tcha just love the euphemisms. Production. As in “producing” a product..or a theater production. right.

    These schmucks are incredulous. First we have..”enhanced..get that..”enhanced” interrogations. And then..targeted killings. TARGETED KILLINGS!!..as if “enhanced” weren’t enough. Well, I’ve got one for them. I call it ..”lowering the boom” whereby the lunette is released on these scumbags while laying on the bed of a guillotine. And then..”watchfull demise”..whereby they gaze from the basket for the last 30 seconds of their wretched pathetic lives. youbetcha. I’d give up my SS to pull that release on Feinstein.

  2. thatvisionthing says:

    @Snoopdido: Oh snap, I just left a Stewart Baker question in ew’s post from Oct. 25 on “voluntary” telecom cooperation. There was something there that struck me funny and it took me a while to track it down:

    https://www.emptywheel.net/2013/10/25/the-voluntary-cooperation-that-comes-from-coercion-of-licensing-agreements/#comment-648980

    I am stuck on this word “voluntary” because of the Yahoo situation where you can’t access your e-mail unless you “voluntarily” hit a button that says you agree to have your e-mail scanned and analyzed. Doesn’t matter if it’s a free account or a paid one, everyone has to volunteer if they ever want to see their e-mail again. Started in June: https://www.emptywheel.net/2013/09/26/did-olc-rule-americans-have-voluntarily-allowed-nsa-to-collect-their-communications-domestically/ (@6-12). (Do conscientious objectors register anywhere?)

  3. Snoopdido says:

    @thatvisionthing: Stewart Baker’s written testimony today at the HPSCI hearing reads like a fool whining caught with his pants down. He seems the epitome of an obsequious National Security State toady.

    If there were any real intellectual content in his testimony, then one might be reasonably able to debate it. Instead, all we get his paranoid drama about the rest of the world kicking our ass because we’re too law-abiding.

    Someone who justifies bad US policy, bad US legal interpretation, and bad US implementation by telling us how much worse we’d have it if we were German or French, or Chinese, that someone is a fool and never worth listening to.

    We all know what a show trial is, and HPSCI Chairman Roger’s hearing today was the equivalent. A show hearing.

  4. thatvisionthing says:

    @thatvisionthing: Actually I have a follow-up question on this voluntary business and govt-telecom legal/business arrangements. Don’t know exactly where to put it, maybe here.

    There was a story on Daily Kos in 2011 that I happened to see recently, “no right not to be framed in the Constitution”. ( http://www.dailykos.com/story/2011/03/22/959025/–no-right-not-to-be-framed-in-the-Constitution ) Mostly about case Rehberg v. Paulk, pretty complex history of prosecutorial fraud, case apparently finally centered on immunity, but I was caught by detail along the way of financial arrangements between prosecution and telecom for Rehberg’s subpoenaed info.

    Defendant Paulk gave the results of the subpoenas, consisting of Rehberg’s personal emails and phone records, to private civilian investigators, who allegedly directed the substance of the subpoenas. These civilian investigators paid the District Attorney’s Office for Rehberg’s information, often making payments directly to Bell-South and the other subpoenaed parties, allegedly to pay debts of the District Attorney’s Office.

    Like, getting paid money to satisfy a subpoena? The case against Rehberg was fabricated to begin with, with fraudulent accessing of his phone and e-mail records, and both the DA and the telecoms got paid. Bells started ringing in the back of my neck. Tell me how this works? I mean, this isn’t even secret law, this is just plain law, yes? Does it metastasize in secret court?

    How much money are telecoms being paid to “volunteer” data? I guess that goes beyond being allowed to keep their license? And bmaz said Qwest’s Nacchio was a crook because he was holding out to get paid more, and not a hero because he refused to go along with an illegal govt request to warrantlessly wiretap, yes? https://www.emptywheel.net/2013/10/04/upstream-us-person-collection-eo-12333-andor-fisa/#comment-637181

    Bleachers question. What is this game? Are telecoms and govt the same two-faced player? Is anybody leading anybody by the nose, when they’re that deep in each other’s pockets?

  5. thatvisionthing says:

    @Snoopdido: Well, yeah, in the July hearing he was saying how darn old civil liberties law kept FBI and CIA from stopping 9/11. (Am I the only one who remembers “Bin Laden Determined to Strike in US”?) Sheila Jackson-Lee said wait, they were foreign nationals, and another witness Kate Martin said what he said was just plain wrong or misleading or something. She called him out. Maybe I Con has a transcript, I just did that part above. The House site didn’t have one. I’m pretty spotty, sorry.

  6. thatvisionthing says:

    @thatvisionthing: Plus, in terms of loose questions I have from old posts, I noticed something State Dept.’s Patrick Kennedy said in an Undiebomber hearing:

    https://www.emptywheel.net/2013/10/25/too-much-transparency-defeats-the-very-purpose-of-democracy/#comment-648553

    Patrick Kennedy: There was insufficient information to immediately revoke the visa, and also following the protocols that have been in place since 2001, we check with our partners in the intelligence and law enforcement communities to make sure that our revoking that visa does not tip him off that he is under surveillance by one of our partners in the national security community, and thus our action would have compromised their ability – let me hypothetically state – to roll up a larger terrorism ring.

    In other words, they didn’t revoke the Undiebomber’s visa because the IC told them not to. So Baker was complaining to Congress in July that they couldn’t stop terrorist plots with the law the way it was before 9/11, and Kennedy was explaining to Congress in 2010 that they couldn’t stop the Undiebomber because of the way the protocols were changed in deference to the IC after 9/11. Wait.

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