Will DOJ’s 1,265-Day Old Section 215 Review Be Squelched By Past Classifications?

DOJ’s Inspector General Michael Horowitz released his annual list of challenges today (which includes a focus on prison problems). In his section on national security and civil liberties he spends 4 paragraphs calling for more information sharing before he turns to civil liberties. In that section, he once again promises the report on the use of Section 215 his office has been working on for 1,265 days.

But he adds something new. He suggests this report may be limited by whether or not DOJ and ODNI declassify sections of the past reports.

The OIG’s ongoing reviews also include our third review of the Department’s requests for business records under Section 215 of the Foreign Intelligence Surveillance Act (FISA), as well as our first review of the Department’s use of pen register and trap-and-trace devices under FISA.  Although the full versions of our prior reports on NSLs and Section 215 all remain classified, we have released unclassified versions of these reports, and we have requested that the Department and the Office of the Director of National Intelligence (ODNI) conduct declassification reviews of the full classified versions.  The results of any declassification review may also affect how much information we will be able to publish regarding our pending reviews when they are complete.

As I have noted in the past, the 2008 report includes two appendices on then-secret uses of Section 215, one of which almost certainly pertains to the phone dragnet. In addition, it includes a sharply critical section on DOJ’s failure to institute new minimization procedures specific to Section 215 (which would dramatically affect its use for the phone dragnet).

Now Horowitz is saying that, unless DOJ and ODNI declassify these past reports, he won’t be able to present in unclassified form all the findings in his current report (which covers the period through 2009, and therefore the violations discovered in that year).

Horowitz suggests something similar is going on with DOJ IG’s work on content collection as well. Both a report he did last year on the FISA Amendments Act (which may suggest the FBI has not always abided by its targeting and minimization procedures) and Glenn Fine’s DOJ-specific review on the illegal wiretap program remain classified.

The OIG has also conducted oversight of other programs designed to acquire national security and foreign intelligence information, including the FBI’s use of Section 702 of the FISA Amendments Act (FAA), which authorizes the targeting of non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information.  The OIG’s 2012 review culminated in a classified report released to the Department and to Congress that assessed, among other things, the number of disseminated FBI intelligence reports containing a reference to a U.S. person identity and the FBI’s compliance with the targeting and minimization procedures required under the FAA.  Especially in light of the fact that Congress reauthorized the FAA for another 5 years last session, we believe the findings and recommendations in our report will be of continuing benefit to the Department as it seeks to ensure the responsible use of this foreign intelligence tool.  This report also was included in our request to the Department and ODNI for a declassification review, as was the full, classified version of our 2009 report on the President’s Surveillance Program, which described certain intelligence-gathering activities that took place prior to the enactment of the FAA. [my emphasis]

Elsewhere, Horowitz alludes to the Snowden leaks. Clearly, much of what appears in the 2009 and 2012 reports has been covered in leaks and releases to Congress. And yet, it seems, someone is stalling the declassification of DOJ IG’s work.

What has DOJ’s IG found that Eric Holder and James Clapper are trying to hide?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

8 replies
  1. C says:

    Three thoughts.

    (1) WOW! Good catch EW!

    (2) At this point I think that it’s safe to say that in the wake of 9/11 the “Gloves came off” “brakes came off”, “no more mr. law abiding guy”, etc. reigned at the FBI and like the NSA they’ve been less than consistent about obeying the laws they are supposed to uphold and now want to hide that because, unlike the NSA, they can’t move it overseas or just pretend to ignore the Constitution.

    (3) Given that Eric Holder has shown a willingness to simply lie about his progress on Wall Street cases I see no reason to believe that the DOJ’s numbers for terrorism investigations are any more accurate. Thus this may also be a case of hiding inflated performance.

  2. Peterr says:

    Just before taking up the challenge of “enhancing cybersecurity,” Horowitz says this in the last two paragraphs of the section “Protecting Taxpayer Funds from Mismanagement and Misuse”:

    Finally, whistleblowers play a critical role in preventing and rooting out mismanagement, waste, and other abuses in the Department, yet retaliation against whistleblowers by Department employees remains a serious subject of concern. For example, in a report released in May 2013, the OIG found that a then-U.S. Attorney, who had resigned prior to the issuance of our report, violated Department policies by disclosing an internal memorandum to a journalist. We concluded that there was substantial evidence that the U.S. Attorney’s motive for disclosing the memorandum was to retaliate against a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) special agent who had previously testified before a congressional committee regarding his concerns about Operation Fast and Furious. The Department must redouble its efforts to aggressively respond to any attempt to retaliate against whistleblowers.

    In light of the importance of whistleblowers to the effective management of the Department, in 2012 the OIG created a Whistleblower Ombudsperson position, one of the first within the federal government, to enable the OIG to continue its leadership as a strong and independent voice within the Department on whistleblower issues, and the OIG was recently certified by the U.S. Office of Special Counsel (OSC) as compliant with training and other whistleblower provisions pursuant to 5 U.S.C. § 2302(c). We believe the Department should consider having its components obtain similar certification from the OSC. The OIG also has been, and will continue to be, actively involved in developing whistleblower-related policies, procedures, and training within the Department; in ensuring that whistleblower complaints are reviewed quickly and thoroughly; and in working with other agencies and OSC to help deter retaliation against whistleblowers. The OIG has provided its staff with training on whistleblower rights and protections using a video developed in conjunction with the Department’s Office of Legal Education and Justice Television Network, and we are now working with the Department to ensure that training on this important topic is expanded to other components.

    When you put this next to the comments you quote above about declassification, I wonder if by including this in his annual report of challenges, Horowitz is trying to up the pressure a bit on DOJ and ODNI to step up their declassification.

    In the absence of this, Horowitz could put forward an unclassified report that says something like this:

    In the course of our investigation of the use of Section 215, we have found numerous violations of the law on the part of US intelligence agencies. Because the DOJ and ODNI refused to declassify material for me in this respect, I am unable to provide specific examples in this public report, but I can say this: these violations were widespread, these violations were deliberate and not accidental, and on those occasions when these violations came to the attention of the FISC, they were not pleased at all. Let me be clear: I believe that senior intelligence officials and the senior government lawyers who advised them willfully, intentionally, and repeatedly overstepped their authority under Section 215. Although I cannot provide examples here, I have provided a classified version of this report to the intelligence committees of both houses, and also to the chief judge of the FISC.

    I’m saddened, though, by the way in which Fast and Furious seems to be the example of choice by Horowitz, and this does not bode well for my thoughts above. From the report:

    The OIG has identified recent instances in which Department employees made inaccurate or incomplete statements to Congress or other government entities. These inaccurate and incomplete statements generated significant attention in both Congress and the national media and resulted in an erosion of trust in the Department. For instance, in the Fast and Furious report referenced above, the OIG found that senior Department and ATF officials shared responsibility for providing inaccurate information in two letters to Congress. The OIG also raised concerns about subsequent representations to Congress by Department officials about Operation Fast and Furious.

    The fact that Horowitz did not mention James “Least Untruthful” Clapper in this respect is distressing, in that it suggests that Horowitz is willing to go easy on highly placed folks who admit to lying to Congress.

  3. Snoopdido says:

    If what Shane Harris reports is true in “Top NSA Civilian Resigns As Surveillance Controversy Swirls” – http://complex.foreignpolicy.com/posts/2013/12/13/top_nsa_civilian_resigns_as_surveillance_controversy_swirls#sthash.EJyt7ZP9.cwlo7zQH.dpbs

    “Fleisch will serve in the No. 2 position “pending administration concurrence in Mr. Inglis’ long-term successor,” the spokesperson said. While that individual has not been named publicly, sources with knowledge of the NSA’s plans say that Richard Ledgett is slated to become the new deputy director. Ledgett is currently in charge of an NSA task force set up to address leaks of classified information.”

    And that is the Richard Ledgett that says this to CBS 60 Minutes reporter John Miller “A deal for Snowden?” – http://www.cbsnews.com/news/a-deal-for-snowden/

    “So far, Snowden has leaked thousands of documents, revealing more embarrassing than damaging information. He has said he would come back if granted amnesty. Miller asks Ledgett if he would make a deal. “My personal view is, yes, it’s worth having a conversation about,” he says, but only if he were absolutely assured the remaining documents are secured. “My bar for those assurances would be very high,” he tells Miller, “…more than just an assertion on his part.”

    It’s a view Ledgett says others at the NSA share, but not everyone agrees with, including his boss.”

    With Director Alexander who opposes a Snowden Amnesty gone by March and Deputy Director Inglis gone by the end of this month, is what we’re hearing from the soon-to-be NSA Deputy Director Ledgett say about a potential Snowden Amnesty deal the new Obama administration line?

    I guess we all will have to stay tuned.

  4. der says:

    More like a soft smothering with the statute of limitations to die right before the primary season. Inglis will land on his feet if not in a plush leather bound chair and Obama will not let any whistle blowing traitor on the freedom train, even one holding a first class ticket. Of course Snowden could always wait for Hillary or Ted Cruz, they’re Ivy League trained constitutional lawyers not easily swayed by political winds.

  5. bloodypitchfork says:

    @Peterr: quote:”I’m saddened, though, by the way in which Fast and Furious seems to be the example of choice by Horowitz, and this does not bode well for my thoughts above. From the report:”unquote

    Notwithstanding the report itself, and with all due respect, your “sadness” at the way F&F is an example of choice pales, in as much as the actual person who broke the F&F story, Mike Vanderbough, STILL carries the burden of shedding light on the continuing obstruction and malfeasance of ATF, not only in regards to F&F, but investigations into other Great Moments in ATF Stupidity as well. Not to mention, long term personal insights into historical and current movements surrounding FBI’s investigations such as Oklahoma/Waco/ and Ruby Ridge. Here is but one current example…

    http://sipseystreetirregulars.blogspot.com/2013/12/sipsey-street-exclusive-sensitive.html

  6. bloodypitchfork says:

    @Snoopdido: “My personal view is, yes, it’s worth having a conversation about,” he says, but only if he were absolutely assured the remaining documents are secured. “My bar for those assurances would be very high,” he tells Miller, “…more than just an assertion on his part.” unquote

    In light of my belief that Greenwald et al are now in control of the release of NSA documents, and they have already initiated a new journalistic venture whereby they will release them at their discretion, I believe it may be out of Snowdens control at this point. However, I highly doubt Snowden, after giving up his entire life to enlighten the whole planet would now trade off the rest of the oncoming revelations for a possible amnesty. If he did..we might as well kiss off this world to Orwell. After all, notwithstanding another Snowden level leak, who or what else can possibly force a further debate and possible oversight reforms of the Surveillance State? I further believe it is only because TPTB know there is still a possible “dooms day” file that they haven’t assassinated him already.

  7. Snoopdido says:

    @bloodypitchfork: I have similar thoughts as you regarding Snowden ever accepting amnesty. That said, I think the idea that the Obama Administration, and in particular, that the likely next NSA Deputy Director, Richard Ledgett are even publicly broaching the idea of amnesty for Snowden is really interesting.

    It may be an indication of just how desperate and panicked the top levels of the US intelligence community are by not only what the Snowden document dump has already produced, but the strong likelihood of an even greater impact by what remains to be published.

    After all the gnashing of teeth and condemnations that Snowden is a traitor and has committed treason by official Washington, the very idea that now someone who is a policy-level NSA executive would even consider amnesty is, and offers such an opinion publicly through the national megaphone of a 60 Minutes broadcast, well I find that to be remarkable.

    I don’t know whether the amnesty offer is a ruse or real, but it is a hell of a policy position to put out there publicly.

  8. bloodypitchfork says:

    @Snoopdido: quote:”After all the gnashing of teeth and condemnations that Snowden is a traitor and has committed treason by official Washington, the very idea that now someone who is a policy-level NSA executive would even consider amnesty is, and offers such an opinion publicly through the national megaphone of a 60 Minutes broadcast, well I find that to be remarkable.”unquote

    Precisely. He might as well put up a state sized billboard saying:

    “Ok..Ok…we give. Please. Don’t prove to the entire planet we did 9/11, and we’ll make you a hero.”

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