Executive Still Hiding Its Phone Dragnet Self-Authorization, While Making Sure We Know It Has It
Back in February, Ron Wyden got then acting OLC head Caroline Krass to admit that Jack Goldsmith’s May 6, 2004 Stellar Wind authorization remained active. Although they could rely on it at any time, Krass suggested they weren’t, because FISA currently authorizes the very same phone dragnet that OLC authorized a decade ago.
In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.
He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?
Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”
In other words, the answer is (it always is when Wyden asks these questions) “yes.”
This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.
Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.
[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?
Krass dodged by noting the declassification had not happened so she couldn’t answer.
Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”
Krass makes it clear the memo is still active, but assures us it’s not being used.
OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.
Last night, the government finally released a new version of that memo, reflecting all the things that have been declassified thanks to Edward Snowden’s leaks.
And it shows that a 15-page section of the memo authorize(s) the phone dragnet.
Only, that section is entirely redacted.
Even after the phone dragnet has been declassified for 15 months, the Executive refuses to show its claim that it can engage in that dragnet with or without Congressional authorization.
Understand what this amounts to: The Executive just waved its dick around in advance of Congressional action that may or may not reauthorize this program. It said, to Congress and to us, that it will continue operating its phone dragnet with or without Congressional authorization.
For what it’s worth, I think that’s a bluff. I believe Verizon would refuse to cooperate without explicit authorization from Congress and legal mandates it can show. But the Executive is, at least, trying to send a message that it doesn’t believe it needs anything so piddly as Congressional approval to spy on every single American.
What makes you think Verizon or any other telco would refuse? They didn’t at any previous point in time.
Would never presume to answer for ew, but imho, consumers want privacy and are willing to hold telco’s accountable.
“The Internet’s Original Sin”
Actually, one telco–I think it’s likely it was Verizon–demanded some kind of order after the NYT disclosures. And then Sprint demanded some order in 2009. I think Verizon may have stopped handing over everything in 2009, in response to issues about them handing over foreign data (though NSA can steal that anyway). I think the real reason they want the new CDR authorization is actually because the telecoms are resisting in some way that we can’t yet explain.
Also, some of the Internet companies stopped responding to some NSL requests (and for some reason they were permitted to — perhaps because the government didn’t want to go to a regular Title III court and admit what they were requesting). So since 2009, the government has used 215 orders to get that content. I suspect the USAF is partly tailored to that, too.
So they will fight back in some circumstances (not AT&T, ever, but the companies that have a decent business model without reliance on the grace of the federal government). And it’s pretty clear, for a variety of reasons, Verizon is in that sweet spot right now, not least because they’re the ones who’ve been exposed as participating in this.
quote”Understand what this amounts to: (snip) It said, to Congress and to us, that it will continue operating its phone dragnet with or without Congressional authorization.
‘But the Executive is, at least, trying to send a message that it doesn’t believe it needs anything so piddly as Congressional approval to spy on every single American.”unquote
In light of the fact Obama himself said the “dragnet should be reined in”, so to speak, even though the IC is part of the Executive, it appears the word “Executive” in your statement, actually means James Clapper. Which if true, in effect amounts to a coup d’etat. At least in my universe.
That’ s pretty funny – you still put stock in what POTUS says as opposed to what he does?
umm, THAT was my point. In a round bout way.
The “reasoning” now made public in these releases is horrifyingly crass, incompetent and unjustifiable. The word “unconstitutional” seems trite. Had this been made public at the time, there would have been impeachments and heads would have rolled. Has the entire American public become so completely desensitized — has Obama so completely normalized the malevolence of the Bush administration — that this seems hardly yet a blip on today’s radar? I’m sorry, among other things, the AUMF is cited as implicit congressional endorsement of and justification for domestic wiretapping? Seriously? No wonder this has been kept secret, but sheesh! Ring the bells, EW, thank you again.
Re, “I believe Verizon would refuse to cooperate without explicit authorization from Congress and legal mandates it can show. ”
What would discourage that? Major corporations routinely flout the law, for which they seldom receive more than a financial slap on the wrist, and government officials are more likely to be promoted than penalized. Knowing that Congress provided retroactive legal cover for past abuses by the intel community and their corporate partners, there’s really no incentive for either intel agencies or corporations to stop coloring outside the lines.
The President who claims these powers are necessary uses the power of his office to conceal direct leads to the 9/11 plot (i.e. 28 pages of the 9/11 JI report). The intelligence agencies who insist they must have sweeping CT powers were involved in withholding information about al Qaeda operatives before 9/11 (i.e. CIA obstructed the Cole investigation and the search for al-Hazmi and al-Mihdhar months before 9/11).