Colleen Kollar-Kotelly Ate the Serpent’s Fruit of Judicial “Oversight” in Lieu of Law

Sometime next week, I will have a post on what known documents the government chose not to release in yesterday’s dump — a significant chunk, for example, almost certainly show how the dragnet programs are tied inextricably to the content programs.

But for now, we’re getting increased clarity on the phone and Internet dragnet program.

One thing that seems clear is that there is no opinion authorizing the phone dragnet, as I suggested two months ago.

What passes as the government’s application for the phone dragnet — it is described as “Production to Congress of a May 23, 2006 Government Memorandum of Law,” but for a number of reasons, I have my doubts we’ve gotten even precisely that, which I’ll lay out at a future time — is dated May 23, 2006, the day before Malcom Howard approved the application. That doesn’t leave time for Howard to have written a fulsome opinion on the practice (and indeed, the timing makes me wonder whether this was approved because of urgent legal deadlines facing the telecoms). [Update: And when John Bates cites the “precedent” in his June-July 2010 opinion (75) he doesn’t cite an opinion.]

And the application makes it clear it relies on Kollar-Kotelly’s opinion as its legal justification. The first instance of doing so, tellingly, makes it clear FISC approval is designed primarily to give legal sanction for the program, not to assess whether the program actually is legal.

The Application is completely consistent with this Court’s ground breaking and innovative decision [redacted] in [redacted]. In that case, the Court authorized the installation and use of pen registers and trap and trace devices to collect bulk e-mail metadata [redacted]. The Court found that all of “the information likely to be obtained” from such collection is “relevant to an ongoing investigation to protect against international terrorism.” 50 U.S.C. § 1842(c)(2); [redacted] 25-54. The Court explained that “the bulk collection of meta data–i.e., the collection of both a huge volume and high percentage of unrelated communications–is necessary to identify the much smaller number of [redacted] communications.” Id. at 49. Moreover, as was the case in [redacted], this Application promotes both the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.

Let’s pause and reflect on this point for a moment.

We can now say with some certainty that a great many dragnet applications stem from the Kollar-Kotelly opinion. That’s because we have almost certainly identified the two opinions named in Claire Eagan’s opinion from earlier this year.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

An earlier reference in Eagan quotes the Kollar-Kotelly opinion directly (and the page number lines up), and while I have not found the citation from this passage in the Bates opinion also released yesterday yet (I think it may appear in the redactions on page 76), that opinion discusses relevance at length and was clearly written between 2009 and 2011. [Update: the quote appears to be a rough transcription of Bates’ cherry picked quote from Kollar-Kotelly that appears on page 9. Update 2: The quote comes from page 73, which is Bates’ own transcription of his citation of K-K, but Eagan missed the word “analytic” before tools.]

[Update] Another thing suggests the Bates opinion dates to 2010. The language in the December 2009 notice to Congress suggests ongoing problems, and includes the Internet metadata problems, whereas the February 2011 notice includes far more redacted discussion (yet still treats an active Internet metadata program.

In addition, we know from the geolocation materials that the government didn’t get an opinion dedicated to that application before they started.

DOJ advised in February 2010 that obtaining the data for the described testing purposes was permissible based upon the current language of the Court’s BR FISA order requiring the production of’ all ca11 detail records.’ It is our understanding that DOJ also orally advised the FISC, via its staff, that we had obtained a limited set of test data sampling of cellular mobility data (cell site location information) pursuant to the Court-authorized program and that we were exploring the possibility of acquiring such mobility data under the BR FISA program in the near future based upon the authority currently granted by the Court.

There are 2004, 2006, 2008, 2010, and 2013 opinions that relate to Section 215 (and, I suspect, other activities as well; updated with typo fixed). But at the very least, Kollar-Kotelly’s opinion authorized gathering substantially all the phone and (by 2010) Internet metadata in the country, as well as (starting in 2010) some subset of geolocation data).

Kollar-Kotelly, then, is the primary analysis the government has always relied on to construct maps charting the relationships of every American.

Which is why I find it so troubling that the application here is unashamed that the point of the opinion is not to assess the legality of a practice, but instead to “provid[e] judicial oversight to safeguard American freedoms.” (Side note: these opinions argue these practices are “necessary” to protect American lives, but the phone dragnet has never once done so, as far as we know, and the government has since purportedly canceled the Internet dragnet program because it was unnecessary, though that is almost certainly a lie.)

Guaranteeing the government doesn’t violate the Constitution was supposed to safeguard American freedoms. But with the Kollar-Kotelly opinion and all that follows from it, impotent oversight has came to substitute for defending the Constitution.

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.

8 replies
  1. C says:

    At first read I feel like this opinion is about bureaucratic relevance, not security. The Cheney administration made it abundantly clear that they were happy to do end-runs around the FISA court and given the court’s inability to enforce any limits on non-FISA behavior there was nothing the court could do. Once they had “legitimized it” however it came under their purview and, in theory, they could monitor and regulate it. In that respect this is no different than other rulemaking processes whereby the EPA, FCC, or other departments assert their authority to regulate some previously unregulated activity. Claiming the authority does not mean that the activity ceases or that that they have power to enforce anything but it does put them in the game.

    In some respects this is the same logic that underlies regulation of gambling or Alcohol post-prohibition. Or for that matter the treatment of detainees at Gitmo. We can’t stop it so we might as well exert some control and bend the curve over time. That at least is the most optimistic reading I see on her decision.

    Having said that it doesn’t seem to have worked out so well given the subsequent reports of rampant abuse. And honestly noone should be surprised. The fundamental power imbalance that made the court impotent hasn’t changed nor has the culture of the IC. If anything it enhanced the power of the IC by letting them go to congress and claim that these programs “had been approved” but keeping the context of the approval secret.

    If anything this opinion should add urgency to the reform efforts by reinforcing just how impotent and useless the existing “oversight” mechanisms really are.

    Thank you for your deep analysis EW.

  2. bloodypitchfork says:

    Honestly..I don’t know how you keep track of this stuff..and analyze it so fast. You must have a wall sized chart. Kudo’s and thanks.

    As to the NSA. To me, it’s real simple. They were and are in criminal conspiracy with the Bush-Cheney cabal/Kollar-Kotelly-FISA/Feinstein/Rogers/CIA/DOJ/FBI/DOE/DHS/and the Executive, to usurp the Constitution…and to make scads of money doing it.

    I smell a revolution coming. And if not…the American public deserves the Surveillance State cause the word “reform” is a monumental joke. This will NEVER go away. And they know it.

  3. GKJames says:

    As if further proof were needed, Kollar-Kotelly’s work product is inevitable, resulting as it does from the absence of a legitimate adversarial legal process. (That we call FISA a “court” continues to amaze me.) And maybe it’s just me, but her opinion has a whiff of the political in the sense that, while recognizing a problem, she’s not about to go on a limb. She appears to have her eye on a long-term judicial/political future, and sticking it to the apparatus might get in the way of that.

  4. Anonsters says:

    This quote is on p. 73 of the Bates opinion (CLEANEDPRTT_2.pdf):

    “As summarized above, the [redacted] Opinion’s finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

  5. Anonsters says:

    I like how Bates notes that NSA is asking to receive metadata at an increase of between 11 and 24 times what it has previously asked for. Then, giving the relevance standard, quotes the notion that one doesn’t need a “‘statistical “tight-fit” between the volume of proposed collection and the much smaller proportion of information’ that pertains directly to a Foreign Power.”

    So we don’t need a statistical tight-fit. Therefore one size fits all! Does not follow.

  6. Stephen says:

    @emptywheel wrote: “Guaranteeing the government doesn’t violate the Constitution was supposed to safeguard American freedoms. But with the Kollar-Kotelly opinion and all that follows from it, impotent oversight has came to substitute for defending the Constitution.”

    Actually, that’s not entirely fair! Guaranteeing the government did not violate the Constitution (probably) WOULD have safeguarded American’s freedoms in the matter of the NSA–had that been the focus, whether of all these FISA-court judges or any of the other people involved, from the NSA to the DOJ to the corporations like Verizon caught up in those cases.

    The problem has been the excessive (and obsessive) secrecy which has surrounded (and still surrounds) the FISC and its processes and judgments. If nothing else, this part of this Snowden revelations has illustrated (yet again) the dangers of having courts of law operate in secret. It should not have BEEN necessary. The Star Chamber has long been a byword for the dangers involved with having judicial processes operate in secret.

    With the FISC, we once again see a secret court become little more than tool for governments to hide behind to get their way in carrying out their policies. The only real difference is that instead of it being a tool for government oppression, the FISC has been reduced to little more than a doormat for the NSA.

    In any other US court, at least some of the incidents recounted in these opinions would surely constitute grounds for holding the NSA in contempt of court. Yet all the court can bother extracting is an every-growing list of unfulfilled (if not outright ignored) promises.

    What has happened to the FISC merely illustrates what happens to a court which does not (or cannot) punish for contempt of itself will sooner or later wind up being treated WITH contempt. That is, after, the fate of any doormat.

  7. Nate says:

    @Stephen:

    What “court” other than the FISA court has “legal advisers” who regularly communicates with litigants’ about substantive matters currently pending before the court? And what kind of “judge” attends secret off-the-record “seminars” prepared by litigants presenting (unsworn/non-testimonial) factual/evidentiary presentations concerning matters currently pending before the court?? What “judge” outside of the FISA court could ever do such things, without being immediately censured/disbarred for violating the canons of Judicial Ethics??

  8. Stephen says:

    @Nate wrote: “What “judge” outside of the FISA court could ever do such things, without being immediately censured/disbarred for violating the canons of Judicial Ethics?? ”

    I think you’re confusing judges with lawyers. Lawyers can be disbarred for misconduct (as distinct from breaking the law), but a federal judge who transgresses would have to be impeached and removed by Congress. Is a breach of judicial ethics an impeachable offence in the United States?

    That technicality aside, the point you raise merely illustrates why there should not be secret courts.

    Mind you, you’re presuming that the FISC actually qualifies AS a (US federal) court in the first plac!. The nature of the FISC as a non-adversarial body which operates behind closed door suggests (notwithstanding the worrd “court” in its title its title) a body more akin to an executive branch body such as the board of governors of the Federal Reserve than a court of law. That is to say, a body whose purpose for existing is not so much to enforce the law as to implement governmental policies in a timely fashion.

    The FISC’s near-perfect record of rubber-stamping executive decisions might also be cited in that regard.

Comments are closed.