Wyden and Udall Accuse DOJ of Misleading SCOTUS about Upstream Even as NSA Misleads NDCA about Upstream

As Charlie Savage reported this morning, Senators Ron Wyden and Mark Udall continue their ceaseless efforts to get NSA and DOJ to tell the truth. They (along with Martin Heinrich) wrote a letter to DOJ in November complaining about representations made in the Amnesty v. Clapper case. DOJ responded. And now Wyden and Udall have just written another response.

In addition to complaining about the government’s notice to defendants, Wyden and Udall claim DOJ improperly hid Section 702 upstream collection from SCOTUS by claiming the Amnesty plaintiffs could only be swept up in the dragnet if they communicated with a target.

These statements — if taken at face value — appear to foreclose the possibility of collection under section 702 intercepting any communications that are not to or from particular targets. In other words, the Justice Department indicated that communications that are merely “about” a target would not be collected. But recently declassified court opinions make it clear that legitimate communications about particular targets can also be intercepted under this authority. Since this fact was classified at the time, the plaintiffs did not raise it, but in our view this does not make these misleading statements acceptable.

The Justice Department’s reply also states that the “about” collection “did not bear upon the legal issues in the case.” But in fact, these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court’s analysis. In writing for the majority, Justice Alito echoed your statements by the Court by stating that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals — namely their foreign contacts.” This statement, like your statements, appears to foreclose the possibility of “about” collection.

[snip]

[W]hile the Justice Department may claim that the Amnesty plaintiffs’ arguments would have been “equally speculative” if they had referenced the “about” collection, that should be a determination for the courts, and not the Justice Department, to make.

After laying this out, they conclude by accusing the Executive of making “misleading statements to the public, Congress and the courts.”

They don’t name all the Courts, though.

They might want to start collecting a list of all the courts DOJ and NSA have lied to, though. Because even as the Senators and DOJ were having this squabble in DC, NSA was continuing to misinform courts on the other side of the country.

Consider how then Acting NSA Deputy Director Frances Fleisch described upstream collection — and the collection of entirely domestic communications that FISC deemed illegal — in a then-sealed declaration in the EFF Jewel case submitted 4 days before DOJ responded to the Senators.

Once a target has been approved, the NSA uses two means to acquire the target’s electronic communications. First, it acquires such communications directly from compelled U.S.-based providers. This has been publicly referred to as the NSA’s PRISM collection. Second, in addition to collection directly from providers, the NSA collects electronic communications with the compelled assistance of electronic communications service providers as they transit Internet “backbone” facilities within the United States.

[snip]

In an opinion issued on October 3, 2001, the FISC found the NSA’s proposed minimization procedures as applied to the NSA’s upstream collection of Internet transactions containing multiple communications, or “MCTs,” deficient. In response, the NSA modified its proposed procedures and the FISC subsequently determined that the NSA adequately remedied the deficiencies such that the procedures met the applicable statutory and constitutional requirements, and allowed the collection to continue.

That is, Fleisch doesn’t even hint that the problem on which Bates ruled — the MCTs — consisted of entirely domestic communications unrelated to those mentioning the “about” selector. She doesn’t even hint that in addition to those MCTs, upstream collection also includes over 4 times as many completely domestic communications — SCTs — as well. She doesn’t reveal that John Bates threatened NSA with sanctions over distributing illegally collected domestic person content. And all of these issues are central to the Jewel complaint, which has always focused on telecoms collecting US person content at circuits. (I believe earlier declarations to NDCA were even more incomplete or downright dishonest on this issue, though will need to show that in a later post.)

In fact, EFF complained about this omission its response to the government’s declarations, noting that upstream about collection is precisely what whistleblower Mark Klein revealed back in 2006.

Public disclosures over the past six months, however, provide substantially more information about these collection practices than the government’s passing references. In particular, the government has publicly released an opinion of the FISC confirming that “‘upstream collection’ refers to the acquisition of Internet communications as they transit the ‘internal backbone’ facilities” of telecommunications firms, such as AT&T. Mem. Op. at 26, Redacted, No. [Redacted] (FISC Sep. 25, 2012) (emphasis added) (Ex. 1).

[snip]

These descriptions of upstream Internet surveillance are functionally identical to the surveillance configuration described by the [Mark] Klein evidence: a system designed to acquire Internet communications as they flow between AT&T’s Common Backbone Internet network to the networks of other providers.

The FISA Court ruled that NSA had been breaking the law and violating the Constitution for at least 3 years leading up to the 2011 decision. And neither DOJ nor NSA have bothered telling courts ruling on the legality of the program about that fact.

It’s pretty impressive that the Executive can mislead courts about the same subject in so many places at once.

But I guess that’s just the flip side of an omnipresent spying agency, that it can also serve as an omnipresent lying agency.

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.

13 replies
  1. chronicle says:

    quote”The FISA Court ruled that NSA had been breaking the law and violating the Constitution for at least 3 years leading up to the 2011 decision. And neither DOJ nor NSA have bothered telling courts ruling on the legality of the program about that fact.”unquote

    If “I” break the law..and get caught..I am held accountable. Why in the hell isn’t a SINGLE person held accountable by this court? After all..they are a fucking CRIMINAL.

    quote”But I guess that’s just the flip side of an omnipresent spying agency, that it can also serve as an omnipresent lying agency.”unquote

    Indeed. An omnipresent lying agency. Perfect. The Ministry of Truth. not.

    I watched Frontline last night. If anything, it proved beyond a shadow of doubt, that LYING is so pervasive, it is STANDING OPERATING PROCEEDURE throughout the USG. However, the NSA should be renamed the LRU. ..ie.. LIARS-R- US. Unfortunately, it doesn’t matter anymore, now that the coup d’etat has occured. NOTHING is going to stop these bastards short of full blown insurrection.

  2. WilliamOckham says:

    Of course, nobody ever mentions that to get those “about” communications off the wire, they have to snoop into to everyone’s content.

    • emptywheel says:

      That’s probably why DOJ keeps forgetting to come clean on that in NDCA. Because upstream is precisely what that suit is about.

      • chronicle says:

        quote”That’s probably why DOJ keeps forgetting to come clean on that in NDCA.”unquote

        Abbreviation query #31…

        NDCA?

  3. orionATL says:

    “..It’s pretty impressive that the Executive can mislead courts about the same subject in so many places at once…”

    this is why credulity,

    whether “natural” (personality based) or calculated/convenient (feigned),

    is a critically, important criterion for admitting any person to a position on the federal bench – specifically includsing david barron.

  4. orionATL says:

    if intractable lying is a central trait of nsa/doj’s officers and lawyers, and it clearly is,

    then the sensennbrenner fake nsa reform act should be opposed and killed.

    there is absolutely no reason to believe the nsa/doj will reform itself in any way regarding their infringement on privacy and constitutional rights of american citizens.

    the nsa/doj will simply look at all parts of the bill as authorizations or invitations to spy on ameticans in any way rationalizable.

    at present all terms of negotiation are controlled by the house intelligence committee, the doj/nsa, and the whitehouse.

    when general michael hayden declares the sensennbrenner bill “a good place to start”, folks who value citizen protection from government legal abuse have been given fair warning that this bill is a fake refor and a trojan horse.

    once enacted with its well-muchhidden but clearer authorizations to spy, this bill will make any future attempts to rein in doj/nsa undoable – “hey, we’ve already dealt with that. look at all the civil libertarians who supported us in 2014.”

    the current bill is a civil rights and constitutional rights disaster in the making.

  5. Peterr says:

    They might want to start collecting a list of all the courts DOJ and NSA have lied to, though.

    I smell a timeline . . .

    Indeed, if I were a lawyer with a pending case along these lines, a timeline of documentable lies put forward by the government in motion after motion, in courtroom after courtroom, would be a rather damning piece of rhetoric.

    Your honor, the government has stated to this court XXXXX. But before you accept that statement, that assertion, as fact, let’s take a look at the past record of the government in the assertions they have made under oath in statements before courts across the country on these matters.

    From the table, I would take a large binder and continue . . .

    On [date 1], the government told Judge A in Court AA that XXX was true.
    On [date 2], we learned from MMM that XXX was in fact not true.
    They knew this on [date 1], and they lied to Judge A.

    *turns page*

    On [date 3], the government told Judge B in Court BB that YYY was true.
    On [date 4], we learned from NNN that YYY was in fact not true.
    They knew this on [date 3[, and they lied to Judge B.

    *turns page*

    On [date 5] . . .

    I’ll take my time with the reading. If the DOJ objects, I’ll tell them I’ll forgo my recitation if they’d like to simply stipulate to years of perjury, deception, and misconduct and proceed directly to disbarment proceedings for the lawyers involved and move immediately to a discussion of sanctions to be imposed on the DOJ and the government to discourage future misconduct.

    Assuming they decline my magnanimous offer, I’ll continue reading. Upon reaching the end of the binder, I’d leave a moment of silence, then conclude:

    “On [today’s date], the government has told you that ZZZ is true. How sure are you, your honor, that next week, next month, or next year, that we all won’t wake up to discover they’ve lied to you, just as they’ve lied to so many of your colleague on the federal bench?”

  6. thatvisionthing says:

    Michael Hayden said a funny thing that sounded like a Freudian slip at the Munk Debate: “That’s just not wrong.”

    Michael Hayden: So, it’s hard. It’s complicated. Sometimes, though, this stuff just gets rushed to the darkest corner of the room. All right? All the ties go to the most ominous description of what’s happening, and sometimes it doesn’t even have to be a tie, it just goes to the most ominous description. Something called the PRISM program? That’s the NSA having access through Google and Microsoft and Yahoo to materials on their servers in the United States, materials affiliated with a legitimate intelligence target? That got shoved out the door that NSA is free ranging on the servers of Google and Microsoft and Yahoo, that it just was an uncontrolled NSA exploration of this data. That’s just not wrong.

    Upstream is the yellow smiley face slide that Barton Gellman reported on last year in the Washington Post, yes? I can’t follow this stuff, but was Hayden switching peas under walnut shells and misleading frontdoor PRISM when story was backdoor upstream, or am I confusing two different stories?

    Now, that story was pushed out. The Washington Post was one of the ones who pushed it out. They corrected it… on their website… over several days… without notifying people the article had been changed.

    What did WaPo correct? Either way…I expect he told the truth: “NSA is free ranging on the servers of Google and Microsoft and Yahoo, that it just was an uncontrolled NSA exploration of this data. That’s just not wrong.”

    Also wonder about “affiliated” –> “about”?

  7. thatvisionthing says:

    More Hayden, from pre-debate interview on Q with Jian Ghomeshi:

    JG: Before I let you go, Michael, and I get to Glenn here, I mean, you just took, you seem to take umbrage at me suggesting Russia and China, or putting, you said, Russia and China in the same sentences as the United States. One of the revelations from Snowden’s leaks is that large amounts of electronic data were collected domestically on citizens in Canada and in the U.S., for instance, and a lot of people would see that equation with the kind of surveillance that happens in Russia and China. Why should we trust organizations like the NSA or CSIS in Canada to not abuse that power?
    MH: Or CSEC, your NSA equivalent. Well, number one, because they’re overseen by democratic governments. But again, I have to – what is the reference, to large electronic surveillance of the American population?
    JG: Yes.
    MH: I know, but what is it you say we’re doing?
    JG: Well, the Snowden leaks.
    MH: Well, what about the Snowden leaks?
    JG:
    MH: What specifically? The phone bills?
    JG: Are you s–
    MH: The metadata program?
    JG: I’m – tell me what you’re suggesting.
    MH: Well, I’m suggesting that there is no large-scale surveillance of the American population by the American intelligence services.

    The whole 10-minute interview was like that. The idea of “consent of the governed” and transparency was new and “hard work” to NSA; he was saying rule was “consent of the governors.” He was explaining the US Constitution to Canadian Ghomeshi.

  8. john francis lee says:

    Senators Ron Wyden and Mark Udall continue their ceaseless efforts to get NSA and DOJ to tell the truth.
    .
    To me … it is their ceaseless efforts to appear to get the NSA and DOJ to tell the truth that are dooming us all.
    .
    These hypocrites themselves know enough of the truth to set us free, and – unlike Edward Snowden – have the immunity from prosecution to do so.
    .
    Instead they play ‘food cop’. Waiting to take their respective turns at the revolving door.
    .
    These scum – our fake ‘friends’ – are our worst enemies.

  9. john francis lee says:

    ‘good cop’ … used to be able to fix typos … before the site was ‘improved’.

    I wonder which of the following …
    .
    +http://www.emptywheel.net
    +http://a.sitemeter.com
    +http://log.sitemeter.com
    +http://partner.googleadservices.com
    +http://sm7.sitemeter.com
    +http://www.google-analytics.com
    +http://www.googletagservices.com
    +http://x.vindicosuite.com
    .
    is actually tracking comments here now? x.vindicosuite.com has an odor about it.

  10. Propertius says:

    I’d take Udall’s hand-wringing over NSA surveillance a lot more seriously if he hadn’t voted for telecom immunity as a Congressman back in 2008 (just like a certain junior Seantor from Illinois).

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