Steven Aftergood linked to this colloquy on the PATRIOT Act which reveals a lot about Ron Wyden and Mark Udall’s efforts to force the government to admit how it’s suveilling Americans. The colloquy basically puts not just the agreement, but the circumstances that went into the agreement, into the Congressional record.

After some Senatorial blathering (mostly Wyden and Udall talking about how swell DiFi is for making this agreement), DiFi starts the colloquy by describing a meeting the night before (that is, on Wednesday night) between her, Wyden, Udall, Jeff Merkley, and Sheldon Whitehouse.

Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and Senator Udall for their comments. We did have a meeting last night. We did discuss this thoroughly. The decision was that we would enter into this colloquy, so I will begin it, if I may.

These Senators and I, along with the junior Senator from Oregon, Mr. Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator from Rhode Island, Mr. Whitehouse met last night to discuss this amendment, the legal interpretation of the Foreign Intelligence Surveillance Act provisions and how these provisions are implemented.

Note the presence of Merkley and Whitehouse, which I’ll return to.

DiFi then talks about how great the collection program in question is.

I very much appreciate the strong views Senator Wyden and Senator Udall have in this area, and I believe they are raising a serious and important point as to how exactly these authorities are carried out. I believe we are also all in agreement that these are important counterterrorism authorities and have contributed to the security of our Nation.

At which point Wyden interrupts and basically says (still speaking in Senate blather, mind you), “um, no.”

Mr. President, I have enormous respect for my special friend from California, the distinguished chairwoman of the Intelligence Committee. I have literally sat next to her for more than a decade. We agree on virtually all of these issues, but this is an area where we have had a difference of opinion.

Wyden and Udall basically both then repeat their warnings about how the government is doing something with PATRIOT not explicitly supported by the law. At which point DiFi pipes up to say, alright already, I’ve conceded you have a point but don’t talk about this here! Talk about it in my secret committee!

Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that these are important issues and that the Intelligence Committee, which is charged with carrying out oversight over the 16 various intelligence agencies of what is called the intelligence community, should be carried out forthrightly. I also believe the place to do it is in the Intelligence Committee itself.

At which point she lays out the terms of the agreement: the Senate Intelligence Committee will have a hearing on the secret law right after the Memorial Day break, and if the Committee agrees to make a fix, they will amend the Intelligence Authorization.

I have said to these distinguished Senators that it would be my intention to call together a hearing as soon as we come back from the Memorial Day break with the intelligence community agencies, the senior policymakers, and the Department of Justice to make sure the committee is comfortable with the FISA programs and to make changes if changes are needed. We will do that.

So it would be my intention to have these hearings completed before the committee considers the fiscal year 2012 intelligence authorization bill so that any amendments to FISA can be considered at that time.

The fact is, we do not usually have amendments to the intelligence authorization bill, but I believe the majority leader will do his best to secure a future commitment if such is needed for a vote on any amendment. I have not agreed to support any amendment because at this stage it is hypothetical, and we need to look very deeply into what these Senators have said and pointed out last night with specificity and get the response to it from the intelligence committee, have both sides hear it, and then make a decision that is based not only on civil liberties but also on the necessity to keep our country safe. I believe we can do that.

Note DiFi’s mention of “specificity,” which I’ll return to.

After DiFi finishes, Wyden pipes in to say that if the Intelligence Committee doesn’t decide to make a fix, then Harry Reid has promised that Wyden and Udall can introduce their amendment on a different bill, one DiFi doesn’t have control over.

Senator Udall and I have discussed this issue with Senator Reid. Senator Reid indicated to the chairwoman and myself and Senator Udall that we would have an opportunity through these hearings–and, of course, any amendments to the bill would be discussed on the intelligence authorization legislation, which is a matter that obviously has to be classified–but if we were not satisfied, if we were not satisfied through that process, we would have the ability to offer an amendment such as our original one on the Senate floor.

Of course, the chairwoman would still retain full rights to oppose it, but we would make sure if this issue of secret law wasn’t fixed and there wasn’t an improved process to make more transparent and more open the interpretation of the law–not what are called sources and methods which are so important to protect our people–we would have an opportunity, if it wasn’t corrected in the intelligence community, to come to the floor.

Senator Reid has just indicated to all of us that he would focus on giving us a vote if we believed it was needed on another bill–not the intelligence authorization–before September 30.

Udall then weighs in with some Senate blather thank yous that provide a few more details on the meeting.

I also wish to acknowledge the involvement of the Senator from New Mexico, who is presiding at this moment in time, and the Senator from Oregon, Mr. Merkley, and the Senator from Rhode Island, Mr. Whitehouse, who has been very involved in bringing this case to the attention of all of us.

The Senator from New Mexico, of course, is Udall’s cousin Tom. Apparently you even have to use Senate blather for family members.

Wyden comes back, restates the terms of the agreement (SSCI hearing, possible amendment, but if not, then an amendment in the full Senate). As part of that, he twice thanks–more Senate blather–Merkley, including this note.

Again, our thanks to the chairwoman and all of my colleagues on the floor, including Senator Merkley, who is not a member of the committee and knows an incredible amount about it and certainly showed that last night in our discussions and was very helpful.

At which point Merkley makes this speech (plus some Senate blather).

It was William Pitt in England who commented that the wind and the rain can enter my house, but the King cannot.

It captured the spirit and understanding of the balance between personal privacy, personal freedoms, and issues of the Crown regarding maintenance of security. It was this foundation that came in for our fourth amendment of our Constitution that lays out clear standards for the protection of privacy and freedoms.

So as we have wrestled with the standard set out in the PATRIOT Act, a standard that says the government may have access to records that are relevant to an investigation–now, that term is, on its face, quite broad and expansive, quite a low standard, if you will. But what happens when it is interpreted out of the sight of this Chamber, out of the sight of the American people? That is the issue my colleague has raised, and it is a very important issue.

I applaud the chair of the Intelligence Committee for laying out a process whereby we all can wrestle with this issue in an appropriate venue and have a path for amendments in the committee or possibly here on the floor of the Senate because I do think it is our constitutional responsibility to make sure the fourth amendment of the Constitution is protected, the privacy and freedoms of citizens are protected.

At which point DiFi officially declared the colloquy over.

So a couple of comments.

Make no mistake, not only did Wyden get this colloquy in the Senate record, but there appear to have been several threats hiding behind the Senate blather. DiFi has said she thinks the way to fix a secret law is to change it in a secret committee meeting. But Wyden et al have made it clear that if she doesn’t agree to fix it in her secret committee meeting, he will try to do so on the Senate floor.

And consider the role of Merkley here. He was at the meeting on Wednesday night, the only person present who is not a member of the Intelligence Committee (and who therefore did not attend the February 2 briefing that got Wyden all fired up about this). In his presence, the concerns about the program were discussed with some “specificity” (per DiFi’s description). As Wyden describes, Merkley was not only present at the meeting, but proved “he knows an incredible amount about” the problem. As part of the whole colloquy, Merkley suggests this problem is akin to letting the King enter your house, precisely what the Fourth Amendment was written to prevent.

This is a key part of the threat, I suspect. Unlike Wyden and Udall, who learned of this problem via classified briefings, Merkley appears to have figured it out on his own. Which means he can speak openly about it if there is a full Senate debate about it.

Now that implicit threat may all get buried under Senate blather. But it appears the message to DiFi is that if she doesn’t fix this secret law in her secret committee, then there will be a public discussion about whatever crazy interpretation she is helping the Administration hide.

All of which sort of makes you wonder when DiFi first got briefed about this? Did the Administration brief the Gang of Four about it some time before it briefed the full committee in February?

In any case, I’m particularly interested in Whitehouse’s role in all of this. Partly, that’s because he’s increasingly the person other Senators (including, I believe, DiFi) look to for a read of what is acceptable or not. And Udall appears to suggest that Whitehouse had a key role in alerting him and Wyden to the problem. Yet he did not co-sponsor the legislation to fix the secret law.

So where is Whitehouse on the issue of this secret law?

No wonder the US Army was allegedly bested in the WikiLeaks leak by a Lady Gaga CD.

In addition to all the other gaping security problems with the classified network, there were apparently widely accessible SIPRNet computers with passwords written out on sticky notes on the computers.

A Guardian investigation focusing on soldiers who worked with Manning in Iraq has also discovered there was virtually no computer and intelligence security at Manning’s station in Iraq, Forward Operating Base Hammer. According to eyewitnesses, the security was so lax that many of the 300 soldiers on the base had access to the computer room where Manning worked, and passwords to access the intelligence computers were stuck on “sticky notes” on the laptop screens.

Rank and file soldiers would watch grisly “kill mission” footage as a kind of entertainment on computers with access to the sensitive network of US diplomatic and military communications known as SIPRNet.

Jacob Sullivan, 28, of Phoenix, Arizona, a former chemical, biological, radiological and nuclear specialist, was stationed at FOB Hammer in Manning’s unit.

“A lot of different people worked from that building and in pretty much every room there was a SIPRNet computer attached to a private soldier or a specialist,” Sullivan said

“On the computers that I saw there was a [sticky label] either on the computer or next to the computer with the information to log on. I was never given permission to log on so I never used it but there were a lot of people who did.”

He added: “If you saw a laptop with a red wire coming out of it, you knew it was a SIPRNet. I would be there by myself and the laptops [would] be sitting there with passwords. Everyone would write their passwords down on sticky notes and set it by their computer. [There] wasn’t a lot of security going on so no wonder something like this transpired.”

Hey DOD? You gotta be trying to keep stuff secret if you’re going to claim it’s secret. If the password to get to the secrets is floating around on Post It notes, you really can’t argue that you were actively trying to keep this stuff secret.

As I’ve said repeatedly in discussions of the secret interpretations of the PATRIOT Act provisions that Ron Wyden and Mark Udall complained about, those interpretations probably claim the government can collect mass information on geolocation.

Julian Sanchez lays out why that is almost certainly the case in this worthwhile post. The three main points (there are several less crucial ones) are:

• The government has been using a hybrid approach–using a combination of pen registers and 2703(d) orders–to get geolocation data in criminal investigations with some support from courts; using pen registers with Section 215 orders could offer the same “hybrid” authorization
• The structure of Ron Wyden’s legislation aiming to rein in geolocation tracking starts with restrictions on FISA, which the criminal statute incorporates, but also includes explicit prohibitions on using pen registers and Section 215 to get geolocation information
• TruePosition’s LocInt service markets the ability to determine proximity, but doing so would rely on widespread collection of geolocation information

In other words, Sanchez lays out both the legal means we know the government has used to track geolocation, maps the legal means Wyden is attempting to use to curtail those legal means, and describes the technical necessity for widespread collection.

Which is a pretty compelling argument that the big rush to extend PATRIOT is about making sure this geolocation tracking doesn’t shut down over the Memorial Day weekend. So rest assured your government is tracking where you’re vacationing this weekend and with whom.

Chuck Todd tweeted last night:

WH announced that POTUS ordered the Patriot Act renewal to be signed by the “autopen”; so, yes, it was robosigned

Reason given for robosigning via autopen: Patriot Act expires midnight tonight, so as to not have gap, either robosigned or flown to him

Now, Todd was writing in the early hours of morning, French time, while watching hoops (I believe he’s a Heat fan). So this interpretation may be a product of his inattention/fatigue.

Nevertheless, it’s interesting because Todd improperly called signing the PATRIOT Act with an autopen “robosigning.” They’re not actually the same thing. Robosigning as currently used is when a poorly paid live person signs a name to a document (though maybe not the one whose name gets signed), claiming to attest to the accuracy of documents without actually doing so. By ordering that PATRIOT be signed using his autopen, Obama gave the law the full weight of law, yet without actually signing the document.

As I joked last night, they’re going to have to add a couple of lines to Schoolhouse Rock to explain to children the magic of the President’s autopen:

I’m just a bill, yes I’m only a bill, thanks to the President losing his auto-quill.

I’m off to the White House to wait in a line for the President’s autosign.

So Todd was somewhat inaccurate in calling this robosigning. But in a funny way that accorded the PATRIOT signing the same illegitimacy and fraud of foreclosure fraud.

That said, Todd then parroted the Administration fib about why “robosigning” was necessary: because the PATRIOT authorities extended yesterday expired at midnight, so the only way to get the bill signed into law was with Obama’s autopen (or a whole lot of wasted jet fuel, and even that wouldn’t have worked in time).

But that’s not right. Because it ignores the way Congress did nothing with the PATRIOT extensions in the existing extension period, the way those defending the status quo preferred letting time run out to a real debate on these authorities, the way a long-term extension was rammed through at the last moment.

The way to avoid the fraudulent appearance of auto-signing the PATRIOT act, of course, would have been to have an actual debate about it. But Harry Reid and John Boehner and Obama and the other defenders of the status quo couldn’t have that!

Update: Apparently it’s okay to “robo-sign” bills into law because Steven Bradbury said it was:

WH says “auto pen” use authorized by Office of Legal Counsel finding in 2005. Obama phoned auto pen OK to staff secretary last night.

The final vote in the Senate opposing yet another sunset of the PATRIOT act was 72-23-5, meaning we’re almost a quarter of the way to regaining some semblance of a Fourth Amendment.

Heh.

Those voting against the forever PATRIOT?

Though note we’re not really a quarter of the way to a Fourth Amendment. Most of these Dems, I suspect, oppose the passage of another sunset without a debate. Some are particularly pissed about the latest interpretation of Section 215. But most still support the concept of PATRIOT powers.

Which means we’re not really making all that much progress.

One aspect of today’s vote I did find interesting, however, was that five Republicans voted against tabling Rand Paul’s gun amendment (limiting the use of Section 215 to get gun records), but voted in favor of the overall sunset. These five are: Barrasso (WY), DeMint (SC), Enzi (WY), Moran (KS), and Shelby (AL).

In other words, these men seem to object only to the use of super government powers when it threatens their gun rights, but not their First Amendment, nor their financial privacy, nor their associations.

While I happen to think figuring out what kind of guns suspected terrorists are buying is a reasonable use of a counter-terrorism law, if we have to have one, I am curious whether this vote will make gun nuts realize that their privacy’s at stake, too (though Saxby Chambliss got up to make it clear that domestic terrorists–like the right wing terrorists who might most object to using PATRIOT to collect gun purchase records–were not at risk). This vote also has the makings of one that TeaParty politicians might use to distinguish themselves from other Republicans.

Because right now, opposition to PATRIOT excesses is still mostly a Democratic issue (though Rand Paul definitely took the leadership role Russ Feingold would have had in the past). Until more Republicans join Paul, Heller, and Lee in opposing PATRIOT, it’ll remain on the books, particularly so long as we have a Democratic President whom Democratic Senators are happy to have wielding such power.

Update: After a half hour of debate, the extension passed the House 250-153.

I’m very sympathetic to what Glenn and bmaz and Spencer and Julian have to say about the stupid fear-mongering around today’s PATRIOT extension. Julian’s explanation of how the grandfather clause would work is particularly important:

. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause.  And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect.  Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short-term extension):

The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has

expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.

Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.

And James Clapper’s fearmongering letter–which was liberated by Sam Stein–is particularly absurd on most counts.

I mean, are we supposed to worry that the government can’t “conduct timely surveillance on a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States,” when the government has never had a need to use this authority, not even with Khalid Ali-M Aldawsari, who was a “a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States”?

I mean, if Clapper wants to make bullshit claims, he just encourages us to treat everything he says as bullshit.

That said, I wonder whether the underlying issue here isn’t the explicit powers–the ability to find out about “terrorist [and non-terrorist] purchases of bomb-making chemicals” with Section 215, for example, but instead the secret collection programs. Clapper says,

Important classified collection programs might be forced to shut down, causing us to lose valuable intelligence information that could be used to identify terrorists and disrupt their plots.

After all, we presume the government is collecting geolocation data not through an actual investigation related to an individual suspect and therefore grandfathered in under the terms Julian laid out. We presume the government is playing fast and lose with the word “related to” in Section 215.

And so it’s not so much that we’ll lose track of Muslims who buy hydrogen peroxide. It’s that the corporations being forced (we presume) to turn over geolocation data are going to respond to the very public lapse of PATRIOT and refuse to keep turning that data over.

(In this way, this fearmongering is precisely like the fearmongering used in February 2008 after the Protect America Act expired; the real issue was the complaints of the telecoms who were legally on the line.)

Of course, none of this means anyone ought to cave to the fearmongering. After all, if the legal basis for this collection is so sketchy that it wouldn’t qualify for the grandfathering that the real authorities do, the government probably ought not be relying on it, right?

Or maybe Reid is just channeling Dick Cheney because he’s anxious to start his long holiday weekend.

As I’ve been reporting, Ron Wyden and Mark Udall unsuccessfully tried to get the Senate to require the government to reveal how it interprets the PATRIOT Act. And since both have made it clear that Section 215 is one of the concerns, I wanted to look at the amendment they’ve proposed to fix Section 215. They proposed to replace this language:

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to— 

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(2) shall include–

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)(I) pertain to a foreign power or an agent of a foreign power;

(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.”.

And here I thought the 83 year old Mouse was tougher than the graying terrorist watching home videos with all the kids. But it turns out that the Navy SEALs bested Mickey Mouse just as handily as they killed Osama bin Laden. (h/t JL)

Walt Disney Co. said Wednesday that it will withdraw its applications to trademark the term “SEAL Team 6” for use on toys, games, and other consumer products.

[snip]

The Navy filed its own applications for the terms “SEAL Team” and “Navy SEALs” 10 days later, explaining in the filings that the phrases denote “membership in an organization of the Department of the Navy that develops and executes military missions involving special operations strategy, doctrine, and tactics.”

“We are fully committed to protecting our trademark rights,” said Commander Danny Hernandez, the chief Navy spokesman.

A Disney spokesman said the company was withdrawing the applications “out of deference to the Navy.”

So if you want to go through a fantasy ride about nabbing Osama bin Laden, you’re just going to have to act it out yourself, with water pistols in your backyard. And if you want to indoctrinate your children into violence from a young age, you’ll just have to stick with the weekend cartoons.

Look on the bright side, though! There are at least some things taxpayers have paid for that the government will insist on keeping!

As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

[snip]

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

It seems we’re going to be discussing anthrax in detail again. And in anticipation of those discussions, I wanted to challenge the notion that the circumstantial evidence against Ivins remains strong.

The whole case depends on the FBI’s contention that a flask Ivins had–RMR-1029–was “the murder weapon.” But in fact, the FBI only has proof that Ivins had what might be one of eight or more potential precursors to the murder weapon. Their efforts to equate the two ignore some interim steps about which they seem to have little evidence (and what they have they’re not examining very closely).

So here’s my summary of the circumstantial case against Bruce Ivins. (Jim White gave me a ton of scientific help with this, but the errors surely result from my own misunderstanding.)

When US Attorney Jeff Taylor announced FBI was closing the investigation in February 2010, he gave the following 7 pieces of evidence that Ivins was the culprit.

First, we were able to identify in early 2005 the genetically-unique parent material of the anthrax spores used in the mailings. As the court documents allege, the parent material of the anthrax spores used in the attacks was a single flask of spores, known as “RMR-1029,” that was created and solely maintained by Dr. Ivins at USAMRIID. This means that the spores used in the attacks were taken from that specific flask, regrown, purified, dried and loaded into the letters. No one received material from that flask without going through Dr. Ivins. We thoroughly investigated every other person who could have had access to the flask and we were able to rule out all but Dr. Ivins.

Second, as a renowned expert in the production and purification of anthrax spores, Dr. Ivins was one of a handful of scientists with the capability to create spores of the concentration and purity used in the attacks. The affidavits allege that, not only did Dr. Ivins create and maintain the spore batch used in the mailings, but he also had access to and experience using a lyophilizer. A lyophilizer is a sophisticated machine that is used to dry pathogens, and can be used to dry anthrax. We know others in Dr. Ivins’ lab consulted him when they needed to use this machine.

Third, in the days leading up to each of the mailings, the documents make clear that Dr. Ivins was working inordinate hours alone at night and on the weekend in the lab where the flask of spores and production equipment were stored. A review of his access records revealed that Dr. Ivins had not spent this many “off hours” in the lab at any time before or after this period. When questioned about why he was in the lab during these off hours prior to each of the mailings, Dr. Ivins was unable to offer any satisfactory explanation.

Fourth, the affidavits indicate Dr. Ivins had engaged in behavior and made a number of statements that suggest consciousness of guilt. For example, one night shortly after a search warrant was executed on his house, Dr. Ivins took highly unusual steps to discard a book and article on DNA coding while under 24/7 surveillance. In addition, he had submitted a questionable sample of anthrax from his flask of parent spores to the FBI, presumably to mislead investigators. He had also made far-reaching efforts to blame others and divert attention away from himself, and had made threatening e-mail statements to a friend regarding the case. Recently, he had detailed threats in his group therapy session to kill people who had wronged him, after learning he might be indicted.

Fifth, as reflected in the court documents, Dr. Ivins had a history of mental health problems and was facing a difficult time professionally in the summer and fall of 2001 because an anthrax vaccine he was working on was failing. The affidavits describe one e-mail to a co-worker in which Dr. Ivins stated that he had “incredible paranoid, delusional thoughts at times,” and feared that he might not be able to control his behavior.

Sixth, throughout his adult life Dr. Ivins had frequently driven to other locations to send packages in the mail under assumed names to disguise his identity as the sender. He had also admitted to using false names and aliases in writings. In addition, he was a prolific writer to Congress and the media, the targeted victims in the anthrax attacks. Law enforcement recovered 68 letters to such entities from his house in a Nov. 1, 2007 search.

I’ll conclude with one more point. The envelopes used in the attacks were all pre-franked envelopes, sold only at U.S. Post Offices during a nine-month window in 2001. An analysis of the envelopes revealed several print defects in the ink on the pre-printed portions of the envelopes. Based on the analysis, we were able to conclude that the envelopes used in the mailings were very likely sold at a post office in the greater Frederick Maryland, area in 2001. Dr. Ivins maintained a post office box at the Post Office in Frederick, from which these pre-franked envelopes with print defects were sold.

Here’s what remains of each of these 7 pieces of evidence:

1. The spores in the attack came from RMR-1029 and Ivins controlled access to that flask

The certainty of this claim was seriously challenged by both the National Academy of Sciences report and subsequent reporting on several grounds.

First, the NAS study concluded only that the genetic analysis was consistent with the spores being derived from RMR-1029.

The results of the genetic analyses of the repository samples were consistent with the finding that the spores in the attack letters were derived from RMR-1029, but the analyses did not definitively demonstrate such a relationship.

That only says that whoever prepared the (probable) two separate batches of anthrax may have started with anthrax obtained at some point from that flask. NAS holds out the possibility the anthrax producer may have gotten it from somewhere else, that it was possible to get similar genetic results from other means (that is, suggesting that’s not the only way to have produced the samples found in the letter).

An even bigger problem is the complete lack of attention on what happened to the anthrax after it came from Ivins’ flask, if it did. The NAS later emphasizes this interim step.

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

What would have to happen to prove that Ivins took spores from his flask and prepared the anthrax used in the attacks is to prove, first of all, that his lab and his skills could have produced the differences from the RMR-1029 flask (for example, could have introduced the silicon and tin found in the attack samples). In addition, you’d have to explain the variables introduced into the NY samples but not the DC ones. And you’d have to prove that all those procedures were possible in Ivins’ lab.

But there’s another problem with the claim that the anthrax had to have come from Ivins’ flask. Remember, what the FBI did was identify four morphological characteristics of the Leahy anthrax, then see which of the samples of anthrax in their repository had those same characteristics, which turned out to be 8-10 samples. It then investigated everyone who had access to those samples, and basically eliminated everyone but Ivins.

But such a process of elimination only works if you’re sure the repository of anthrax samples the FBI had represented all the possible samples from which the anthax could have come. The NAS wasn’t convinced that the repository was that comprehensive.

The FBI repository was developed from an intensive effort to identify laboratories having access to the Ames strain; however, we cannot conclude that this approach identified every laboratory or was a comprehensive representation.

For good reason. To develop the repository, the FBI depended on the records of transfers between labs. But as Noah Shachtman reported, the FBI had proof their repository was incomplete in 2003.

In December 2003, while conducting an inventory of one of USAMRIIDs biocontainment suites, investigators discovered 22 undocumented Ames anthrax samples. They began to fear that the repository they had spent nearly two years assembling might have gaping holes in it. So for the first time, the FBI decided to scour USAMRIID for any vials they had missed.

The institute staff fumed at the search—ongoing experiments would be disrupted, they shouted. (Hank) Heine, Ivins’ coworker, decided to exact a bit of revenge on his FBI handler. While the agent was collecting samples in his lab—dressed in full protective gear—Heine handed her a vial and told her it was a deadly plague strain. The vial started shaking in the agent’s gloved hand. Heine cracked up. “They were entirely dependent on me to identify everything in every box,” he says. “I could’ve held up a critical piece of evidence, said it was something else, and put it aside. There’s no way they would’ve known.”

That was almost two years after they first got samples for their repository, and there’s no indication the FBI did this kind of census of samples in Batelle (which had the one non-USAMRID sample that matched RMR-1029) or Dugway (from which Ivins’ precursor samples derived). And as Heine pointed out–and NAS did, too–since the FBI was completely dependent on the scientists to collect their samples, it meant that anyone trying to hide a sample could have done so easily.

A final challenge was that the repository collection process was based on the integrity of the individuals asked to provide samples. If the motive for the repository was to identify the source of the letter material, standards of custody of evidence would dictate that agents of the FBI should have obtained the samples. In most instances, holders of the material were asked to provide samples and send them in. The sender could have been the instigator and may not have complied with instructions, as the FBI alleges with respect to Dr. Ivins.

The FBI’s entire case against Ivins relied on their claim that the sample had to be the precursor to the attack anthrax based on process of elimination. But not only does FBI not have the record-keeping to prove they had accounted for all samples nor the proof that their repository represented a valid cross-sample, they’ve got little to prove that the differences between the anthrax used in the attacks could have been introduced in Ivins’ lab, as they suggest they were.

2. Ivins was one of a handful of scientists with capability to make the anthrax and he had access to the equipment–a lyophilizer–to make the spores

NAS refuted the claim that you could conclude anything about the scientific skill or equipment needed to produce the anthrax used in the attack.

The committee finds no scientific basis on which to accurately estimate the amount of time or the specific skill set needed to prepare the spore material contained in the letters. The time might vary from as little as 2 to 3 days to as much as several months. Given uncertainty about the methods used for preparation of the spore material, the committee could reach no significant conclusions regarding the skill set of the perpetrator.

This is again the problem of pointing to Ivins’ flask as a precursor without explaining how that precursor anthrax was prepared to result in the two different samples used in the attack. And while FBI points to the lyophilizer, they don’t consider things like the equipment needed (perhaps a fermenter) to produce the volume used in the attack, nor the skills and equipment to introduce things like silicon into the samples. These issues might disqualify Ivins just as readily as a lyophilizer would disqualify other scientists.

3. In the days leading up to the mailings, Ivins spent an unusual amount of time alone in his lab at night, giving him the opportunity to make the anthrax

This gets back into the problem of explaining how Ivins’ sample was purportedly prepared. As noted, NAS’ experts gave the range of time it would take to prepare this sample as between 2 days and several months.

As a result of the different possible production schemes that might have yielded product with the observed characteristics of the evidentiary materials, the committee finds that the time required for this work could be as little as 2 or 3 days to as much as several months. The differences are based on different estimates of the time required for propagation, purification, and drying, among other variables, as well as the state of the starting material.. In particular, it is not known whether some of the initial steps might have occurred well in advance of the letter attacks. The committee cannot resolve these distinctions because it had no information identifying a production method or the steps involved in production.

Even the guy in charge of this investigation, Edward Montooth, admits they don’t have the timeframe nailed down.

“We still have a difficult time nailing down the time frame,” he says. “We don’t know when he made or dried the spores.”

But the value of the evidence about Ivins spending time in his lab in the nights before the mailing window for the anthrax relies on the short end of this time frame: it assumes that Ivins made the anthrax in 3 or 8 day windows leading up to the two dates the anthrax was mailed.

If it turns out the anthrax prep took much longer–two months, for example–then the same lab records that are one of the most incriminating pieces of evidence given the FBI’s original theory would then work in reverse, showing that Ivins wasn’t in his lab during the key period needed to culture the attack anthrax.

4. Ivins acted guilty by, among other things, submitting a questionable sample of anthrax to the FBI

There are a number of key reasons FBI argues Ivins acted suspicious. A key one is that he gave a sample purported to be RMR-1029 in April 2002 that tested negative for the four morphological variations ultimately used to ID the anthrax.

As a threshold matter, NAS argues that the proof this was a doctored sample is weaker than the FBI maintains, partly because the FBI’s statistics were off and partly because it didn’t account for problems with the FBI’s own repository protocol or aspects of colonies.

The genetic evidence that a disputed sample submitted by the suspect came from a source other than RMR-1029 was weaker than stated in the Department of Justice Amerithrax Investigative Summary.

That said, the chances of it being doctored are still significant.

But even assuming the later sample was doctored, there are a couple of other odd details about this. First, Ivins submitted a sample in February 2002 that, though it didn’t comply with the FBI’s sampling protocol, did ultimately test positive for the four morphological variations in question. Then, after being asked to resubmit, he submitted the questionable sample in April, which tested negative for the morphological variations. Ultimately, in 2004, after discovering USAMRID’s record-keeping was a clusterfuck, they found additional samples that Ivins should have turned over as well as RMR 1029.

But if Ivins submitted a dummy sample in April 2002, then why did he submit what appears to be a good sample of RMR-1029 in February 2002?

5. Ivins was mentally ill

Ivins apparently was mentally instable. But I’m not sure how you distinguish between someone who was mentally ill and therefore tried to kill a bunch of people and someone who responded to being in the middle of a WMD attack who therefore reacted in unpredictable fashion that appeared suspicious?

6. Ivins has a history of driving places to mail things as well as writing letters to politicians and the press

There are two parts to this argument: an explanation for why Ivins would have driven to Princeton to mail the anthrax, and an explanation for why Ivins allegedly chose to send Daschle and Leahy, in particular, deadly anthrax.

The former invokes the whole theory about Ivins trying to attract attention from the sorority KKG. That whole story was pretty shaky from the start, not least because it doesn’t explain why Ivins would drive to Princeton to mail anthrax from a mailbox somewhat close to a KKG office, rather than sending it from closer to DC from a place directly associated with a KKG house. The psychological profile of Ivins did add one potential explanation for this: “Princeton represented his father,” who had mocked Ivins when he was a child. Whatever. I still find the whole KKG theory a big stretch, particularly given that the FBI hasn’t figured out how Ivins made the anthrax in the first place.

But then there’s the question of why he would send anthrax to Leahy and Daschle. The FBI affidavit supporting search warrants suggests that Ivins targeted them, in part, because they were pro-choice.

In 2001, members of the Catholic pro-life movement were known to be highly critical of Catholic Congressional members who voted pro-choice in opposition to the beliefs of the Catholic Church. Two of the more prominent members of Congress who fell in this category were Senator Tom Daschle, then Senate Majority Leader; and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, both recipients of the 2001 anthrax mailings.

Ivins’ will–which threatened to give a third of his estate to Planned Parenthood if his wife prevented him from being cremated–pretty much refuted that as a motivating factor. The psychological profile did refer to a letter Daschle sent DOD in June 2001 raising concerns about the anthrax vaccine.

They also suggest that Ivins wanted to press for an anthrax vaccine–a theory which would incriminate a number of other people in government to a much greater degree, and a theory which–as Shachtman writes–doesn’t have much evidence as far as Ivins.

The Justice Department asserts in its investigative summary that Ivins mailed the letters to gin up support for an anthrax vaccine, offering a few ambiguous emails and comments to friends and investigators as proof. If there’s any further, credible evidence to support this notion, Wired couldn’t find it in the thousands of pages of case documents released by the government or in the hours of interviews conducted with the investigators. Montooth concedes it’s a placeholder rationale at best

All of these details–the KKG theory and the Daschle-Leahy theory–remain very very weak. At the very least, they suggest the FBI should have looked harder for accomplices to Ivins, which, having been confronted with a convenient suicide in 2008, they appear not to have done.

7. Franking evidence shows the envelopes used in the attacks could have been purchased in Frederick, MD

The franking evidence, which shows that the envelopes used in the attacks came from a particular print run, is some of the stronger evidence in this case.

But the franking evidence doesn’t lead exclusively to the Frederick, MD, post office. Envelopes from that print run might have been sent to a whole slew of MD and VA post offices serviced by the Dulles Stamp Distribution Office, including at a minimum Cumberland, Elkton, Glen Burnie, Lutherville, Severna Park, and Galena, MD, and Machipongo, Arlington, and Fairfax, VA. In other words, this evidence, while it might include Ivins, would also include a great many other possible suspects.

And all of this lacks anything that ties Ivins specifically to the Princeton mailboxes, like anthrax residue in his car or fibers from his car in the envelopes.

At a minimum, this suggests the FBI would have had a hard time proving their case against Ivins (just the abysmal record-keeping of USAMRID alone would have introduced a great deal of doubt).

The big problem, though, is that the interim step in this case–the process by which something genetically like RMR-1029 had the significant changes introduced as it was turned into a murder weapon–remains significantly unexamined. That’s precisely the area where new questions are being asked. Or more accurately, questions that were asked in 2008 remain unanswered.

That, and the guy who has been refusing a more broadbased examination of the FBI’s work on this case for years is about to get two more years as FBI Director.