I said the other day, most of NSA’s Civil Liberties and Privacy Office comment to the Privacy and Civil Liberties Oversight Board on Section 702 was disappointing boilerplate, less descriptive than numerous other statements already in the public record.
In the passage on back door searches I looked at, however, there was one new detail that is very suggestive. It said NSA does more back door searches on metadata than on content under Section 702.
NSA distinguishes between queries of communications content and communications metadata. NSA analysts must provide justification and receive additional approval before a content query using a U.S. person identifier can occur. To date, NSA analysts have queried Section 702 content with U.S. person identifiers less frequently than Section 702 metadata.
Consider what this means. NSA collects content from a selector — say, all the Hotmail communications of ScaryAQAPTerrorist. That content of course includes metadata (setting aside the question of whether this is legally metadata or content for the moment): the emails and IPs of people who were in communication with that scary terrorist.
The NSA is saying that the greater part of their back door searches on US person identifiers – say, searching on the email, “TroubledTeenager@gmail.com” — is just for metadata.
Given the timing, it seems that they’re using back door searches as one of two known replacements for the PRTT Internet dragnet shut down around October 30, 2009, turned on again between July and October 2010, then shut down for good in 2011 (the other being the SPCMA contact chaining of EO 12333 collected data through US person identifiers).
Recall that NSA and CIA first asked for these back door searches in April 2011. That was somewhere between 6 to 9 months after John Bates had permitted NSA to turn the Internet dragnet back on in 2010 under sharply restricted terms. NSA was still implementing their rules for using back door searches in early 2012, just months after NSA had shut down the (domestic) Internet dragnet once and for all.
And then NSA started using 702 collection for a very similar function: to identify whether suspicious identifiers were in contact with known suspicious people.
There are many parts of this practice that are far preferable to the old Internet dragnet.
For starters, it has the benefit of being legal, which the Internet dragnet never was!
Congress and the FISC have authorized NSA to collect this data from the actual service providers targeting on overseas targets. Rather than collecting content-as-metadata from the telecoms — which no matter how hard they tried, NSA couldn’t make both legal and effective — NSA collected the data from Yahoo and Microsoft and Google. Since the data was collected as content, it solves the content-as-metadata problem.
And this approach should limit the number of innocent Americans whose records are implicated. While everyone in contact with ScaryAQAPTerrorist will potentially be identified via a backdoor search, that’s still less intrusive than having every Americans’ contacts collected (though if we can believe the NSA’s public statements, the Internet dragnet always collected on fewer people than the phone dragnet).
That said, the fact that the NSA is presumably using this as a replacement may lead it to task on much broader selectors than they otherwise might have: all of Yemen, perhaps, rather than just certain provinces, which would have largely the same effect as the old Internet dragnet did.
In addition, this seems to reverse the structure of the old dragnet (or rather, replicate some of the problems of the alert system that set off the phone dragnet problems in 2009). It seems an analyst might test a US person identifier — remember, the analyst doesn’t even need reasonable articulable suspicion to do a back door search — against the collected metadata of scary terrorist types, to see if the US person is a baddie. And I bet you a quarter this is automated, so that identifiers that come up in, say, a phone dragnet search are then run against all the baddies to see if they also email at the press of a button. And at that point, you’re just one more internal approval step away from getting the US person content.
In short, this would seem to encourage a kind of wild goose chase, to use Internet metadata of overseas contact to judge whether a particular American is suspicious. These searches have a far lower standard than the phone and Internet dragnets did (as far as we know, neither the original collection nor the back door search ever require an assertion of RAS). And the FISC is far less involved; John Bates has admitted he doesn’t know how or how often NSA is using this.
But it is, as far as we know, legal.
Partly because I want to test my kludge with some quick content while I put out 100 other fires, and partly because I want to raise some issues I’ve been mulling, I want to point to Steve Vladeck’s take on the Awlaki memo decision the other day. My piece (which I’ve reproduced below because the site is buggered) made a lot of the same points as Vladeck did about how selective disclosure brought us to this point. It’s the last paragraph of Vladeck’s post I’ve got questions about. He argues — and the government has argued in their filings in this case — that this decision will lead to less transparency.
II. The Second Circuit’s Decision Might Therefore be Counterproductive for Transparency This leads to the most worrisome reaction I have to yesterday’s decision–that, in the long term, it will disincentivize any disclosure of secret legal rationales, lest even fairly limited disclosures empower FOIA-based arguments such as those upon which the Court of Appeals seized yesterday. In its editorial today, the New York Times suggests that the President should react to this decision by “allowing the conversation the country needs to have.” I fear it will have the opposite effect–and, when combined with the D.C. Circuit’s decision earlier this year with respect to Exemption 5, make it that much less likely that this or any future President will proactively support any disclosure of secret OLC memoranda, or even sanitized white-paper versions thereof. That’s not to say that I would have preferred the opposite result; only that the real solution, at the end of the day, will likely have to come from Congress–and not the courts.
I’m not sure disincenting this kind of false transparency is a bad thing. Think back to the days after Awlaki got killed. There was a lot of pressure, both within and outside of Congress, to release this memo. And then the NYT got a leaked nearly verbatim account of the memo (well, just the second one; it appeared to be months and months before NYT’s sources admitted there had been an earlier one!). That diminished the pressure for a time, which set back even the SSCI getting to see a copy of the memo for another year and a half. Then, weeks later, Katrhyn Ruemmler was in the White House arguing that releasing it would put the White House at a disadvantage in ACLU’s suits against it, which at that point primarily concerned this FOIA. This false transparency serves as a release valve that allows the Executive to dodge any accountability, particularly in courts. So losing it — losing the release valve that permits President after President to string out any inquiry into these gross expansions of power — would be a good thing. Note: we continue to have technical issues, so for the moment, comments have been turned off.
Correction: The original version of this post screwed up the chronology of the release of the NYT article and Ruemmler.
In my latest post in DOJ’s apparent effort to destroy evidence pertinent to EFF’s several lawsuits in Northern District of CA, I noted that even after being ordered to explain their earlier material misstatements to the FISA Court, Assistant Attorneys General John Carlin and Stuart Delery left a lot of key details unsaid. Significantly, they did not describe the full extent of the evidence supporting EFF’s claims in the dispute (and therefore showing DOJ’s actions to be unreasonable).
Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.
[T]he Government has always understood [EFF's suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the Second Amendment to Primary Order filed in the above-captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs’ counsel’s February 26, 2014, e-mail.
Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.
Apparently, EFF agrees. EFF Legal Director Cindy Cohn wrote AAGs Stuart Delery and John Carlin to complain that they hadn’t referenced the evidence submitted by EFF to support its claims.
[W]e were dismayed to see that the government’s response to the FISC on pages 3-5 repeated its own arguments (plus new ones) about the scope of the Jewel complaint without referencing, much less presenting, plaintiffs’ counter-arguments. As you know, especially in our reply papers (doc. 196) in support of the TRO, plaintiffs presented significant argument and evidence that contradicts the government’s statement to the FISC that plaintiffs only “recently-expressed views” (pages 2, 7) regarding the scope of the preservation orders. They also also undermines [sic] the few paragraphs of the Jewel Complaint and some other documents that the government has cherry-picked to support its argument.
In addition, Cohn complains that the government has left the impression this dispute pertains solely to phone records.
[W]e are concerned that the FISC has not been put on notice that the scope of the dispute about the preservation order in Jewel (or at least the scope of the plaintiffs’ view of the preservation order) reaches beyond telephone records into the Internet content and metadata gathered from the fiberoptic cables of AT&T. This is especially concerning because the FISC may have required (or allowed) destruction of some of that evidence without the knowledge that it was doing so despite the existence of a preservation order covering that information issued by the Northern District of California.
Cohn’s invocation of Internet data is particularly important as it raises the second of two known illegal practices (the other being watchlisting US persons in the phone dragnet without the legally required First Amendment review) the data for which would be aging off now or in the near future: the collection of Internet content in the guise of metadata. I believe the Internet dragnet continued until October 30, 2009, so if they were aging off data for the 6 months in advance, might be aged off in the next week or so.
I’m really curious whether this spat is going to be resolved before Reggie Walton finishes his service on FISC on May 19.
But one thing is certain: it’s a lot more fun to watch the FISC docket when ex parte status starts to break down.
The 2nd Circuit has just ruled that the government must release a redacted version of the targeted killing memo to the NYT and ACLU, as well as Vaughn documents listing the documents pertaining to the Anwar al-Awlaki killing.
The central jist of the argument, written by Jon Newman, is that the White Paper first leaked selectively to Michael Isikoff and then released, under FOIA, to Jason Leopold (Leopold FOIAed after reading about it in this post I wrote), amounts to official disclosure of the information in the OLC memo which, in conjunction with all the other public statements, amounts to a waiver of the government’s claim that the OLC memo amounted to pre-decisional deliberations.
This argument starts on page 23, in footnote 10, where the opinion notes that the White Paper leaked to Mike Isikoff was not marked draft, while the one officially released to Leopold was.
The document disclosed to [Leopold] is marked “draft”; the document leaked to Isikoff is not marked “draft” and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked “draft.”
The opinion strongly suggests the government should have released the Mike Isikoff — that is, the one not pretending to be a draft — version to ACLU.
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
Then, having established that the document leaked to Isikoff is the same as the document released to Leopold, which was officially released, the opinion describes the DOD opinion at issue, a 41 page classified document dated July 16, 2010 signed by David Barron.
An almost entirely redacted paragraph describes the content of the memo.
The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].
A subsequent passage explains that parts II through VI provide the legal reasoning.
FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552b. The Government’s waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed.
And a still later passage reveals that the remaining section — part I — discusses intelligence gathering activities, presumably as part of a discussion of the evidence against Anwar al-Awlaki.
Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities.
So while the paragraph describing the content of the Memo is redacted, we know the first section lays out the evidence against Awlaki, followed by 5 sections of legal reasoning.
The redacted paragraph I included above, describing the content of the Memo, is followed immediately by a paragraph addressing the content of the White Paper.
The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted]
The first redaction here probably states that the White Paper parallels the OLC memo. The second probably describes the key differences (besides length and the absence of the underlying evidence against Awlaki in the White Paper). And that second redaction is followed by a discussion describing the White Paper’s extensive passage on 18 US 1119, and lack of any discussion of 18 USC 956, a law prohibiting conspiracies to kill, maim, or kidnap outside the US.
The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted].
In other words, the big difference in the legal reasoning is that the still-secret Memo argues that the US plot against Awlaki was not an illegal conspiracy to kill him, in addition to not being a murder of an American overseas.
Conspiracies to conduct extralegal killings of terrorists are not the same as conspiracies by terrorists to kill, apparently.
Having laid out that the non-draft Isikoff memo is the same as the officially-released Leopold memo, and the officially-released Leopold memo lays out the same legal reasoning as the OLC Memo, the opinion basically says the government’s claims it hasn’t already released the memo are implausible.
As the District of Columbia Circuit has noted, “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear that the justification must be “logical” and “plausible” “in protecting our intelligence sources and methods from foreign discovery.”
With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.” The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
Clearly, throughout its treatment of the Awlaki killing, the Obama Administration has attempted to be able to justify its killing of an American citizen publicly without bearing the risk of defending that justification legally.
And they almost got away with it. Until they got a little too loosey goosey with the selective leaks when they (someone) leaked the White Paper to Isikoff.
Ultimately, though, their selective leaking was the undoing of their selective leaking plan.
Steve Aftergood reports that James Clapper has done what Congress refused to do: forbid any unauthorized contact between Intelligence Community staffers and any member of an unbelievably broadly defined media. The order requires IC employees to obtain authorization for contacts with the media, and report any unplanned contacts.
3. Contact by IC employees with the media on covered matters must be authorized by their IC element.
a. Within the IC, only the head or deputy head of an IC element, the designated public affairs official, and other persons designated in agency policy or authorized by that public affairs official are authorized to have contact with the media on covered matters, except as provided below.
b. IC employees, as defined in EO 12333, Section 3.5(d), not designated in accordance with Section D.3.a, must obtain authorization for contacts with the media on covered matters through the office responsible for public affairs for their IC element, and must also report to that office unplanned or unintentional contact with the media on covered matters.
4. No substantive information should be provided to the media regarding covered matters in the case of unplanned or unintentional contacts. Authorization for a particular contact on covered matters does not constitute authorization for additional media engagement.
And here’s the definition of “media,” which would include civil rights organizations and some attorneys.
4. For purposes of this Directive, media is any person, organization, or entity (other than Federal, State, local, tribal and territorial governments):
a. primarily engaged in the collection, production, or dissemination to the public of information in any form, which includes print, broadcast, film and Internet; or
b. otherwise engaged in the collection, production, or dissemination to the public of information in any form related to topics of national security, which includes print, broadcast, film and Internet.
Employees found to have violated this policy may lose their security clearance and/or their employment.
I guess James Clapper, whose credibility is already shot to shit for lying to Congress and spending 10 months uttering transparent lies, wants to doom the IC’s credibility entirely.
After all, from this point forward, we can assume that any statement citing an IC source is approved propaganda. Thanks for clearing that up, Clapper.
Over at Lawfare, Ken Anderson released the public comment on Section 702 the NSA Civil Liberties and Privacy Office have submitted to the Privacy and Civil Liberties and Oversight Board. Anderson notes that the comment doesn’t appear to be online yet, and the name of the Civil Liberties and Privacy Officer, Rebecca Richards, doesn’t appear on what Anderson posted (though that may be Lawfare’s doing).
The statement, generally, makes me sad. The comment repeatedly backed off including known, even unclassified details about Section 702, and as such this doesn’t so much read as an independent statement on the privacy assessment of the woman at the NSA mandated with overseeing it, but rather a highly scripted press release.
I will probably do a piece on some potential holes this statement may indicate in NSA’s oversight (though it is written in such hopeless bureaucratese, we can’t be sure). But for the moment, I wanted to point to what, in my opinion, is the most glaring example of how scripted this.
The statement describes back door searches this way:
Since October 2011 and consistent with other agencies’ Section 702 minimization procedures, NSA’s Section 702 minimization procedures have permitted NSA personnel to use U.S. person identifiers to query Section 702 collection when such a query is reasonably likely to return foreign intelligence information. NSA distinguishes between queries of communications content and communications metadata. NSA analysts must provide justification and receive additional approval before a content query using a U.S. person identifier can occur. To date, NSA analysts have queried Section 702 content with U.S. person identifiers less frequently than Section 702 metadata. For example, NSA may seek to query a U.S. person identifier when there is an imminent threat to life, such as a hostage situation. NSA is required to maintain records of U.S. person queries and the records are available for review by both OOJ [sic] and ODNI as part of the external oversight process for this authority. Additionally, NSA’s procedures prohibit NSA from querying Upstream data with U.S. person identifiers.
The only new piece of information provided here is that the NSA conducts more back door searches on 702 metadata than on 702 content.
But then the statement immediately provides the most defensible example of back door searches — searching for a US person’s identifier in content when they’ve been kidnapped, a scenario that derives from a pre-PAA problem with NSA’s kludged FISC approved program. Notably, this scenario is almost certainly not a metadata search! This is also the same scenario used by Dianne Feinstein’s aides in November to obscure the true extent of the searches, suggesting it is a propaganda line NSA has developed to spin back door searches.
What I find so frustrating about this statement is how it compares with statements others have already made … to PCLOB.
In November, for example, after ODNI General Counsel Robert Litt admitted that the Intelligence Community treats back door searches of 702 data (and probably, EO 12333 data) like they do all “legally collected” data, NSA General Counsel Raj De admitted that NSA doesn’t even require Reasonable Articulable Suspicion to do searches on US person data, because doing so would involve adopting a higher standard for back door searches than for other data.
Raj De: Our minimization procedures, including how we handle data, whether that’s collection, analysis, dissemination, querying are all approved by the Foreign Intelligence Surveillance Court. There are protections on the dissemination of information, whether as a result of a query or analysis. So in other words, U.S. person information can only be disseminated if it’s either necessary to understand the foreign intelligence value of the information,evidence of a crime and so forth. So I think those are the types of protections that are in place with this lawfully collected data.
[Center for Democracy and Technology VP James] DEMPSEY: But am I right, there’s no, on the query itself, other than it be for a foreign intelligence purpose, is there any other limitation? We don’t even have a RAS for that data.
MR. DE: There’s certainly no other program for which the RAS standard is applicable. That’s limited to the 215 program, that’s correct. But as to whether there is, and I think this was getting to the probable cause standard, should there be a higher standard for querying lawfully collected data. I think that would be a novel approach in this context, not to suggest reasonable people can’t disagree, discuss that. But I’m not aware of another context in which there is lawfully collected, minimized information in this capacity in which you would need a particular standard.
Then, in March, Litt objected to requiring court review before doing back door searches (and he was asked specifically about back door searches of US person data, though he reportedly tried to back off the application of this to US persons after the hearing) because the volume of back door searches is so high.
[Retired DC Circuit Judge] Patricia Wald: The President required, or, I think he required in his January directive that went to 215 that at least temporarily, the selectors in 215 for questioning the databank of US telephone calls–metadata–had to be approved by the FISA Court. Why wouldn’t a similar requirement for 702 be appropriate in the case where US person indicators are used to search the PRISM database? What big difference do you see there?
Robert Litt: Well, I think from a theoretical perspective it’s the difference between a bulk collection and a targeted collection which is that–
Wald: But I would think that, sorry for interrupting, [cross-chatter] I would think that message since 702 has actually got the content.
Litt: Well, and the second point that I was going to make is that I think the operational burden in the context of 702 would far greater than in the context of 215.
Wald: But that would–
Litt: If you recall, the number of actual telephone numbers as to which a RAS–reasonable articulable suspicion determination was made under Section 215 was very small. The number of times that we query the 702 database for information is considerably larger. I suspect that the Foreign Intelligence Surveillance Court would be extremely unhappy if they were required to approve every such query.
Wald: I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the FISA Court would be the ultimate criteria.
Litt: Well I think it’s more than a question of convenience, I think it’s also a question of practicability.
Admittedly, Litt’s answer refers to all the back door searches conducted by the Intelligence Community, including the both the CIA and FBI (the latter of which other reporters seem to always ignore when discussing back door searches), as well as NSA. So it’s possible this volume of back door searches reflects FBI’s use of the practice, not NSA’s. (Recall that former presiding FISC Judge John Bates admits the Court has no clue how often or in what ways the Executive Branch is doing back door searches on US person data, but that it is likely so common as to be burdensome to require FISC involvement.)
Still, the combined picture already provided to PCLOB goes well beyond the hostage situation provided by the Privacy Office statement.
Even the President’s comment about back door searches in his January speech appears to go beyond what the NSA statement does (though again, imposing new limits on back door searches for law enforcement purposes probably speaks primarily to FBI’s back door searches, less so NSA’s).
I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702.
We are slowly squeezing details about the reality of back door searches, so I wasn’t really relying on this statement in any case.
But it’s an issue of credibility. The Privacy Officer, to have a shred of credibility and therefore the PR value that Obama surely hopes it will have, must appear to be speaking from independent review within the scope permitted by classification restraints. That hasn’t happened here, not even close. Instead, Rebecca Richards appears to speaking under the constraint of censorship far beyond that imposed on other government witnesses on this issue.
That doesn’t bode well for her ability to make much difference at NSA.
For another purpose, I’m reviewing Robert Mueller’s declaration in support of the government’s report to the FISA Court in 2009, attempting to get full phone dragnet privileges turned back on. (starting on PDF 91)
As part of it, Mueller provides narratives about 4 FBI investigations that became full investigations as a result of phone dragnet data.
One of those (the first, starting on PDF 102) is Basaaly Moalin. As I’ve already noted, that involved the connection of at least one and almost certainly two T-Mobile cell phone users to a phone used by Somali warlord Aden Ayro.
While the declaration’s redaction on this point is inconsistent, it does confirm cell phones were involved in the chain between Ayro and Moalin (and may suggest Moalin was identified on a 3rd degree connection, not 2nd as court documents had seemed to imply).
But the description of another case, ultimately involving a selector who got killed off, involved another cell phone.
Of course, in this case, the newly identified cell phone could be an AT&T cell, and there seems to be no claim that those aren’t collected under the phone dragnet.
Altogether, unredacted sections of Mueller’s narrative mention cell phones 6 times, and a number of the redactions appear likely to hide others. A number of those, mind you, are probably foreign cells, which were likely collected under EO 12333. But given that 12333 data was mixed with (and, indeed, indistinguishable from to the NSA at that point) Section 215 data, claims the database couldn’t accept cell data seem clearly wrong.
Still, given all the credulous claims that the phone dragnet has not been collecting cell data, it seems rather relevant that FBI’s own discussions of the phone dragnet successes involve so many cell phones.
Some time ago, I noted that DOJ appears not to have provided the classified report on Section 215 for the Judiciary and Intelligence Committees mandated by the 2006 PATRIOT Act Reauthorization to Congress in 2009 to 2011. Instead of being sent to the Chairs of the Committees, the reports for those years were simply “filed.”
DOJ continued to provide Congress the unclassified FISA report, which included much of the same information about the numbers of Section 215 orders approved and modified.
But those reports would not have included two critical details: the fact that the sharply increasing number of modifications pertained to the FISC’s imposition of minimization procedures, suggesting collection in some bulk.
And the number of sensitive Section 215 orders issued under the following categories.
(A) Library circulation records, library patron lists, book sales records, or book customer lists.
(B) Firearms sales records.
(C) Tax return records.
(D) Educational records.
(E) Medical records containing information that would identify a person.
So for the years 2008 to 2010, even two of four designated oversight committees did not learn these details (the Intelligence Committees are required to get details on every request, but who knows if that requirement was met?).
In that post, I also noted a problem with 2007′s numbers, as well, a problem DOJ readily admitted in the unclassified report issued in 2009 (supposedly covering 2008).
In its 2008 report, the Department reported to Congress that during Calendar year 2007, the Govermnent made-six applications to the FISC for access to certain business records (including the production of tangible things) for foreign intelligence purposes. Further review of the Government’s records subsequently revealed that the Government had made seventeen applications to the FISC for access to certain business records. The FISC did not deny, in whole or in part, any such application filed by the Government during calendar year 2007.
“Further review revealed.”
I’m just now realizing how utterly unbelievable this is.
You see, the way the docket works, each new request has its own docket number, so to count the requests you need only count the dockets.
The last docket in the phone dragnet is BR 07-16, issued October 18, 2007 (meaning there was just one more business record docket that year). There is no conceivable way DOJ could not very simply have come up with the correct number for both reports to Congress by looking at the final docket number, which should have been 17. Which means Congress may never have gotten the proper classified detail on those additional 11 requests.
DOJ hid — purposely, necessarily, based on the way the dockets work — the details on sensitive requests to Congress in 2007. Then they appear to have hid the sensitive requests for the following three years. Given that John Bates is copied on the first request thereafter, it appears he may have made them finally fulfill the letter of the law.
They clearly were hiding something about their other Section 215 requests, for four full years.
Matt Apuzzo collects the thoughts of a number of people who are getting frustrated with the way the CIA and FBI (though I suspect it might be CIA and CIA) keep holding up the Gitmo show trials.
Most damning of them is this quote from top military justice lawyer professor, Eugene Fidell.
“It’s a courtroom with three benches,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “There’s one person pretending to be the judge, and two other agencies behind the scenes exerting at least as much influence.”
That assessment is not all that far from the claim Khalid Sheikh Mohammed made in the propaganda tract behind this latest delay.
Every democratic country in the west has a constitution, an executive branch, a judicial branch, and a legislative branch. They also have a big black box above and beyond these branches that implements all that it sees as being in the interest of the country or ruling party without consideration for any constitution, morality, religion, or principle. This black box is called Intelligence and its authority supersedes all other considerations.
The Kangaroo Court trying KSM is proving him right. That’s not a good thing.
As I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.
Of particular interest is this investigation.
The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.
The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.
The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.
Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.
Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.
Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.
And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.
But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.
After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Continue reading