Another Iraq Failure by Petraeus: Graft-Ridden Military

Back when the Bush Administration and their neocon operators were most proud of their “accomplishments” in Iraq, their poster boy for this success most often was my favorite ass-kissing little chickenshit, David Petraeus. As the public finally became aware of what a disaster Iraq really was and as Obama moved his focus to the “good war” in Afghanistan, I noted that Petraeus’ name was no longer associated with Iraq once it, and especially Petraeus’ multiple attempts to train Iraq’s military, had failed. Today we have further news on how Iraq’s military came to be in such sad shape that many units simply disappeared when it came time to confront ISIS. It turns out that while he was gaining accolades for training Iraqi troops, Petraeus was in reality creating a system in which Iraqi officers were able to siphon off the billions of dollars the US wasted on the whole training operation:

The Iraqi military and police forces had been so thoroughly pillaged by their own corrupt leadership that they all but collapsed this spring in the face of the advancing militants of the Islamic State — despite roughly $25 billion worth of American training and equipment over the past 10 years and far more from the Iraqi treasury.

/snip/

The United States has insisted that the Iraqi military act as the conduit for any new aid and armaments being supplied for a counteroffensive, including money and weapons intended for tribal fighters willing to push out the Islamic State. In its 2015 budget, the Pentagon has requested $1.3 billion to provide weapons for the government forces and $24.1 million intended for the tribes.

But some of the weaponry recently supplied by the army has already ended up on the black market and in the hands of Islamic State fighters, according to Iraqi officers and lawmakers. American officials directed questions to the Iraqi government.

“I told the Americans, don’t give any weapons through the army — not even one piece — because corruption is everywhere, and you will not see any of it,” said Col. Shaaban al-Obeidi of the internal security forces, also a Sunni tribal leader in Anbar Province. “Our people will steal it.”

But don’t look for any of the new billions being spent to put controls on graft into place:

American officials say working with the tribes, and military corruption, is beyond the scope of their mission. “Reducing corruption is not part of the advisers’ role,” said one American official involved in the effort, “and there is no reason to believe that advisers’ presence will reduce corruption.”

Isn’t that just peachy? We know without a doubt that giving weapons or financial support to the Iraqi military is guaranteed to wind up helping ISIS instead of fighting them. And yet Washington insists on throwing another $1.3 billion going down the same shithole.

Part of the reason that this can’t be stopped is that the US side of the graft is so organized and institutionalized. Moving out from just the efforts within Iraq to the entire campaign against ISIS, we see who really benefits:

President Obama is asking Congress for an additional $5.6 billion to fight the militant group. A large share of the money, if approved, would be given to the Pentagon to train and equip Iraqi forces, while a smaller portion would be reserved for the State Department.

/snip/

The big defense companies that manufacture weapons are likely to receive orders to help the military replenish its stocks, analysts said.

That includes Falls Church giants Northrop Grumman and General Dynamics, as well as Raytheon and Boeing, said Roman Schweizer, a defense policy analyst with Guggenheim Securities.

/snip/

More broadly however, the budget includes funding requests for operations and maintenance of military bases, as well as classified operations and research and development.

That could potentially boost business for services companies such as Arlington’s DRS Technologies, or contractors that work in the field of intelligence, said James McAleese, founder of Sterling-based McAleese & Associates, a government contracts consultancy.

Ah, but the big goose keeps producing golden eggs for the folks who train Iraq’s military. The article continues:

In the long term, the biggest procurement for services contractors could stem from the $1.6 billion requested for the Iraq Train and Equip Fund, Schweizer said.

The fund would be used to provide training at multiple sites throughout Iraq for approximately 12 Iraqi brigades, according to the White House.

Although the Pentagon has yet to state if it plans to use contractors for training, “history would suggest that when the Army goes somewhere, contractor support follows,” Schweizer said.

So, while Ashraf Ghani and Abdullah Abdullah continue their tussles over who owns what in Afghanistan’s graft-sharing arrangement, graft-sharing here in the US is politely played out in the Washington process of contracting. And in Washington, we know that the company that makes the biggest investment in congressmembers wins fair and square.

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Another Informant Lost in a Defeat List?

Sky News reports on an investigation into Michael Adebolajo and Michael Adebowale, who killed British soldier Lee Rigby in May 2013.

The report apparently admits that MI5 tried to recruit Adebolajo — but it claims it didn’t have him under close surveillance and so couldn’t see him planning his attack.

 The Kenyans passed him over to the British and MI5 tried to recruit him as an informant.

[snip]

MI5 has always maintained that although Adebolajo was on their radar, he was not considered a high priority, and therefore not worthy of a time-consuming, resource-sapping surveillance operation, which are reserved for the most dangerous suspects.

Sky News understands the investigation is likely to sympathise with that decision, although the committee, chaired by Sir Malcolm Rifkind, will say there were clues in the online behaviour of Adebolajo.

While it might have been possible to uncover his plot if his online activity been monitored, requests to monitor his phone or internet activity would not have passed the requisite threshold because he was not deemed high risk.

I’ve pointed before to the evidence that informants are hidden in databases, as a way to deconflict them.

Which, in a case like this, would lead the British government to ignore Adebolajo’s online posting showing him prepping an attack, which would lead to one of theirs getting killed.

I’m not certain that’s what happened, but there does seem to be a pattern of attempted or known informants launching terror attacks.

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The Masked US Marshals Who Nabbed Chapo Guzmán

In the middle of a story about a masked US Marshal who was injured in an operation against the cartels in Mexico in July, Devlin Barrett reveals what was obvious, but never confirmed, at the time. US Marshals (and other US personnel) were involved in the operation that nabbed Chapo Guzmán.

The Marshals Service operations in Mexico are carried out by a small group sent for short, specific missions. The goal is to help Mexico find and capture high-value cartel targets.

One operation yielded a great success: The capture of cartel boss Joaquin Guzman Loera, known as “ El Chapo, ” earlier this year. It is unclear whether U.S. Marshals personnel were disguised as Mexican military men on the day he was caught.

Sometimes the Marshals Service targets a person Mexico would like to apprehend but who isn’t wanted by U.S. authorities, the people familiar with the work said.

Marshals personnel on the ground dress in local military garb to avoid standing out and are given weapons to defend themselves.

The reason I was pretty certain at the time Americans were involved was because all of the “Mexican Marines” involved in the operation — at least the ones that showed up in pictures — were fully masked, so fully that they likely hid light hair as often as faces that might get people targeted by the cartels.

Barrett also makes clear that the toys the Marshals are using in the US under Pen Register authority are also being deployed when they work under cover in Mexico.

The Marshals Service works closely with the Mexican Marines because the U.S. agency has expertise at finding fugitives, in part through technology that detects cellphone signals and other digital signatures. That includes airplane flights operated by the agency carrying sophisticated devices that mimic cellphone towers, as reported last week by The Wall Street Journal. That technology works better with a ground presence.

[snip]

The people familiar with the matter described the Marshals Service as a police agency affected by mission creep. More than five years ago, the Service flew small planes along the border to detect cell signals and locate suspects inside Mexico. About four years ago the flights crossed deep into Mexican airspace, the people said.

They added that, more recently, some flights have been conducted in Guatemala.

I would bet that the tech deployed against Chapo was even niftier than what the Marshals use here. That would allow them to test nifty new technologies against the most hardened targets, and do so without any legal niceties required, before they start conniving judges to authorize the same technologies against easier targets here. So if we look closely at the Chapo operation, we might learned what exotic new technologies are only beginning to be used here in the US.

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Lake Effect Trash Talk

Whoo boy, there is a bit of snow that shuffled in to Buffalo recently. So, with the Kittehs over in Foxborough taking on the steamrolling Pats, Buffalo will be the “home team” in Detroit for their game against the Jets. And tickets will be free, which is a cool thing for fans in Motown. The Jets just stink and Buffalo ought be a little jacked up, so I’m taking the Wagon Circlers. But what about the Kittehs? The Bill Bel and Brady brigade are just flat out rolling and just signed a new/old battering ram, er running back, LeGarrette Blount to solidify their running game. The Lions might be slipping back into the penalty prone ways. Hard not to take the Pats here.

Other than Pats and Lions, the other truly big game is the Cards up at the Seasquawks. The Squawks are favored pretty heavily. The national press, especially all the chatterers on ESPN, seem fixated on the Cards being in trouble because Carson Palmer is done for the year and backup Drew Stanton is in charge at QB. But I don’t think that is the worry, Stanton is competent, and the Cards were not exactly flashy even with Palmer. I think the problem is the running game, or actually lack thereof. The Cards get a little bit out of Andre Ellington, but really just don’t have much of a ground game. I think against a still tough Seattle defense, in that noisy stadium, that will doom the Cards. The Dolphins at Broncos and Ravens at Saints will also have big implications for all four teams and their playoff chances.

It is really a weak schedule in the college ranks this week. Arguably the two best games are in the Pac-12. First up is Rich Rod and the Arizona Wildcats in Utah to face the Utes.As I said earlier in the year when ASU played Utah, the Utes are good, and especially so at home in Rice Stadium. Lot of people picking Utah, but I think the Cats will pull out a narrow win. The other Pac-12 tilt of note is the yearly grudge match between USC and UCLA. The Bruins are favored at “home” in the Rose Bowl, but home field doesn’t mean much with these two. Both Brett Hundley and Cody Kessler are having great seasons at QB. I think it is a tossup, maybe slight edge to the Trojans. The SEC seems to all be playing Eastern Podunk State this week, so who cares about them? Special shoutout for Scribe on the Lehigh and Lafayette game being played in Yankee Stadium. I rate it a tossup, because who knows what can happen when these two get together! Seriously though, this is the 150th meeting in this ancient rivalry, and the NYT has a great story about the history.

Really, that is about it for excitement. There are only the two top shelf games in the NFL, but they should be good ones. The announcement of a no-bill, the opposite of an indictment for you non-criminal lawyers, is likely to be announced from the St. Louis County prosecutor’s office on Sunday, or so it seems to be shaping up to my eye. Officer Darren Wilson will skate for the homicide of Michael Brown, and all because prosecutor Bob McCulloch designed and ran a ridiculously out of the ordinary and craven grand jury designed to insure there was no indictment. Wilson figuratively chased a boy through the park and put a bullet in his heart. So today’s music is an absolutely kick ass version of Doo Doo Doo Doo Doo (Heartbreaker) by the Stones from 1972. Rock on.

Update from emptywheel. Scribe actually wrote a great piece on the Lehigh/Lafayette game so I’m making an executive decision to share it with you all.

This is the weekend someone in the marketing department decided would be called “Rivalry Weekend”. And, so it is. Even though BMAz says it’s a lame weekend for college football, he’s wrong again. Many of the greatest rivalries in the college game get played today. But there is one rivalry which stands apart from the others. Today, Lafayette College and Lehigh University will play football against each other for the 150th time. That is more than any other pair of teams have played each other, anywhere, ever. This year The Game will take place at a neutral site. Yankee Stadium.

These are two smallish Eastern colleges with campuses about a dozen miles apart in two of the small, now post-industrial, cities of Pennsylvania. The schools are justly proud of their academics and the distinction of their graduates. You can look them up, but they routinely wind up near the top of the “highly competitive” categories.

Lehigh is a full-blown university awarding all sorts of degrees through the doctorate, but it came up as a school of engineering and the hard sciences. It was founded in the 19th century by the man in charge of the Lehigh Valley Railroad and located literally up the hill – Bethlehem’s South Mountain – from the main works and offices of the Bethlehem Steel Company. For generations there were many young men who, upon graduation, would go down the hill and into the offices of The Steel, to retire from there 40 or so years later. For the longest time, Lehigh’s teams were “the Engineers”. But, in recent years either they had an attack of the marketing department or a crisis of confidence and they wound up renaming themselves the “Mountain Hawks”.

Lafayette is an all-undergraduate college sited on College Hill, a bluff overlooking the city of Easton and the confluence of the Lehigh and Delaware rivers. Its professors actually teach students in classes. It was founded in the first part of the 19th century. Its graduates have been more catholic in their fields of accomplishment, though business and Wall Street are strongly represented. Since time out of mind, its teams have been called the “Leopards”. In the days before the No Fun League, college football was the game and Lafayette was a national powerhouse as well as innovators. They were consensus national champions in 1896, 1921 and 1926. That’s right. Three-time national champions. In those old days, responding to the team from the University of Pennsylvania stealing their signals, Lafayette’s team invented the huddle. And, after tiring of getting banged around, one of Lafayette’s players invented the old leather football helmet. And in the late 40s when Texas’ Jim Crow would have stopped their star running back, a former Tuskegee Airman, from playing, Lafayette told the Sun Bowl to keep their bowl bid.

The rivalry between these two colleges is and always has been intense even as they’ve gone from I-A to I-AA in football, I-A in other sports. If you haven’t experienced it from the inside it’s quite hard to describe. It extends from football through all other sports and into the work and social worlds. That whole “Roll Tide -War Eagle” bit has nothing on this. For many years, the intensity of the rivalry required The Game to be played twice – home and home – every year. Thus, today is the 150th time The Game has been played even though they only started playing in 1884. The energy behind the rivalry played out in stunts – can you build an egg launcher that can be smuggled into the game and will reach to the other side of the stadium? – violence – both were all-male schools until about 1970 and all that energy went into … something – vandalism – once, some Lehigh students put their welding skills to work and removed the balls from a larger-than-life bronze of General Lafayette. (After that and some very professionally done repairs, all outdoor statuary was boxed over for most of November. Students often repainted the boxes to look like outhouses.)

Two schools where football players play more for the love of the game than anything else. Both schools are antipathetic toward athletic scholarships and there are no academic shortcuts. Hardly any of the players ever gets a look from the No Fun League, so today is the end of football for most of the seniors. Each school has long traditions, alumni who deeply love them and many reasons to be proud. Today is one more. For me, Yankee Stadium is too far to travel, but I might be going to a sports bar where The Game will be on CBS Sports Network.

Raise a glass. This is what college football should be.

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The Drone Rule Book Has Made It Easier for Our Partners To Drone Kill With Us Again

As I noted earlier, one of the questions that National Counterterrorism Center nominee Nick Rasmussen got asked in his prehearing confirmation questions pertained to the Drone Rule Book.

He was asked about his role in writing the “US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” He replied that he participated in “very initial drafts” of the document in May and June 2012 while at NSC, and then participated in the interagency process before it was approved in May 2013.

He was then asked, “Has the Presidential Policy Guidance made our counterterrorism operations more effective?”

Click through to read his full answer to question 17, but he basically talks a lot about institutionalizing the process, all while emphasizing that the Drone Rule Book simply recorded the swell procedure that was already in place. After several bullets of that, he finally answers what was ultimately a yes or no question.

By refining and documenting the careful and deliberate way in which these operations are approved and conducted and by contributing to greater transparency in our CT operations, I believe the PPG has made it easier for some of our key allies and CT partners to support those operations by sharing intelligence and/or providing other forms of support for our CT operations. I believe PPG had likely contributed to making some of our CT operations more effective by making critical forms of CT cooperation with key partners more sustainable. By standardizing and institutionalizing the considerations and processes that inform our policymaking on direct action operations, we have become more effective in reviewing these operations and ensuring all appropriate national security equities are considered prior to approval.

In response to a question about whether the Drone Rule Book “is a good long term solution for this type of irregular warfare,” Rasmussen talked about how it combined flexibility with a framework to balance many issues.

Obviously, I’m most interested in the benefit Rasmussen says the Drone Rule Book has brought: that it makes it easier for key partners to cooperate with us on drone strikes and other lethal operations.

That’s particularly interesting given the lawsuit by a Yemeni man against British Telecom for its role in a drone strike that killed his brother. He bases his suit on BT’s role in providing cable service between a base in the UK and Djibouti, from where some of the drone strikes are launched.

And here we come to find out that the Drone Rule Book is an effort to make it easier for partners — which probably includes both the UK and Djobouti (because I can’t imagine the Saudis, Yemenis, and Pakistanis much care) — to help out on our drone killing program.

 

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On the USA Freedom Act’s Data Handshake

As I noted yesterday, part of the effort to pass the USA Freedom Act involved what I call a “data handshake:” A deal whereby all four major telecoms would keep call detail records 2 years, without a mandate to do so.

At Foreign Policy, I have more details on this — with a focus on how this works with the Business Records law that authorizes the phone dragnet.

The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.

The government has repeatedly told courts that under Section 215, the NSA can only ask telecoms for business records they already hold. Yet Feinstein seems to have revealed, perhaps unintentionally, that under the new law the telecom companies would be willing to hold records at least an extra six months just so the government could presumably spy on their customers, if necessary. And in order to keep the records available under the law, the companies would claim they were keeping the records for business reasons. By doing this orally, no records could be obtained under discovery in a customer lawsuit or leaked by an NSA whistleblower like Edward Snowden. The telecoms could claim that they are not agents of the nation’s spies, even after they seem to have agreed to a handshake deal making them into just that.

Compare agreeing to this data handshake with what Verizon said in June.

At a Senate hearing in June, Verizon’s Associate General Counsel Michael Woods explained that Verizon keeps call detail records for just 12 to 18 months. “We don’t have data five years back,” Woods explained in response to a question from Collins. “All collection would be from our ordinary business records.”

In June, Woods made clear that Verizon objected to holding call detail records longer. His written testimony insisted that “national security is a fundamental government function that should not be outsourced to private companies.” He described that if a telecom company were asked to “retain data for the use of intelligence agencies,” it would be serving as “an agent” of the government.

Now, as I conclude in my piece, the telecoms that agreed to the data handshakes were probably calculating, correctly, that their customers would be better off if they held the records for 6 months longer than they needed to given their business needs than having the government hold them at all. I get the logic behind this deal.

But it is indefensible. The law, as written, cannot oblige Verizon to hold these records. The reason it can’t is because the law was never intended to set up an intrusive dragnet. Had it done so –and hopefully if the government tries to do so now — then it would have been publicly debated. And the program’s inefficacy would have been a much bigger issue.

The strong-arming of telecoms, presumably including Verizon, into this data handshake ought to refocus efforts to find a better solution to get the government the coverage it actually needs, but without inventing dragnets that have not shown to be useful.

 

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The “DSOP Accommodation”

In what may serve as the public transition moment from Dianne Feinstein to Richard Burr (in part because Saxby Chambliss was absent), the Senate Intelligence Committee considered the nomination of Nick Rasmussen to head National Counterterrorism Center yesterday. He’s long served as the Deputy anyway, so he’s very well qualified, and the hearing was one of those love affairs you often see (though in this case I’m not aware of any big flags that the Committee might soon regret, as I predicted during John Brennan’s confirmation).

That said, I highly recommend Rasmussen’s Additional Prehearing Answers. Along with a really accessible (and welcome) description of many of NCTC’s functions, it includes (question 17) what appears to be his description of his role in developing the Drone Rule Book.

I wanted to also point to his discussion of the Directorate of Strategic Operational Planning (see questions 11 and 13). In 2012, DSOP was described as an important part of CT, but one Congress had largely neglected:

The Directorate of Strategic Operational Planning is supposed to be the mechanism for government-wide strategic operational planning and is half of NCTC’s mission, yet oversight is negligible.  The seeming importance of DSOP has been highlighted in testimony by NCTC leadership, yet relatively unchallenged by Congress in hearings.  In his statement to the Senate Select Committee on Intelligence as nominee for the Director of the NCTC, Adm. John Scott Redd called strategic operational planning “substantial, daunting and, I believe, very necessary.”[xii]  Through the years, SOP has been called “truly revolutionary”[xiii] as the government has “come together in ways…never seen during…decades of government service.”[xiv]  Despite caveats of strategic operational planning as “new to the US government,” [xv]SOP was called “foundational”[xvi] to counterterrorism efforts.  Succeeding NCTC Director Michael Leiter said he was “more convinced than ever that success against terrorism will only come through such coordinated and synchronized efforts—to include the full weight of our diplomatic, financial, military, intelligence, homeland security and law enforcement activities.” [xvii]  For such weighty importance, however, Congress hardly paid attention to DSOP.

Since then, however, it has become clear that one reason Congress hadn’t been paying attention is because the Executive wasn’t sharing details on it. In John Brennan’s prehearing questions, for example, the Committee hammered him a bit for withholding information.

Question 23: Please describe any involvement you have had in the Administration’s responses to the Committee’s requests for the strategies produced by the Directorate of Strategic Operational Planning, including whether you personally made any decision or recommendation regarding the Committee’s access to such strategies and, if so, providing the specific legal basis for your decision or recommendation.

A: In my capacity as Assistant to the President for Homeland Security and Counterterrorism, I have conferred with NCTC Director Matt Olsen on how to determine what elements of those NSS-led counterterrorism implementation plans that NCTC’s Directorate of Strategic Operational Planning (DSOP) has contributed to should be shared with the Committee. DSOP supports the NSS in helping to draft and coordinate some–not all–CT implementation plans and to compile related department and agency activities. These documents often contain policy-focused information from the NSS that is deliberative in nature; include information on non-intelligence-related activities that departments and agencies may be pursuing; and, in some cases, access to documents is limited by the NSS due to security sensitivities around the CT planning/implementation effort. I have worked with Director Olsen to share with the SSCI those plans or parts of plan that are not deliberative in nature and that involve intelligence activities. I have supported NCTC’s decision to respond to SSCI requests for briefings/information on the non-deliberative, intelligence-related aspects of particular plans and would support SSCI requests for briefings/information from other parts of the intelligence community, including CIA, as it relates to particularly plans.

The question on this topic addressed to Rasmussen is more circumspect.

Question 13: Historically, the Committee has had difficulty in obtaining the strategies that are produced by NCTC’s Directorate of Strategic Operational Planning. If confirmed, will you abide by the current accommodation that has been reached between the Committee and NCTC?

A: Yes. I am familiar with the accommodation that has been reached with the Committee with respect to the strategies that DSOP produces and, if confirmed,, I would continue to abide by it.

The response doesn’t really reveal whether the SSCI is actually learning what kind of schemes get considered during this strategic response to terrorism; it sure seems to be limited.

As it happens, two of the maybe 12 questions addressed to Rasmussen addressed the question as well.  Rising Chair Burr challenged Rasmussen what he — in this DSOP role — would do strategically to combat terrorism (I liked his emphasis that DSOP, not NSC, is actually the agency in charge).

Burr: What is NCTC as the Executive agent for our nation’s strategy gonna do about [the broad threat of terrorism]?

Rasmussen: [pauses] The role that NCTC plays in carrying out Strategic Operational Planning in support of the government is one that has us tied very closely to the National Security Council staff and the policy development process for pursuing strategies against–on counterterrorism. We work with the National Security Council staff to develop whole of government plans to address our counterterrorism concerns in each of the theaters around the world. Not just one single theater, for ex–as you would well expect, Senator. The efforts to develop strategies against ISIL is at a particularly energetic pace right now. But our Strategic Operational Planning capability is also brought to bear on the whole array of CT challenges we face, in Africa, in Asia, in South Asia, every region you can think of. And so I would consider our job at NCTC to make sure that we aren’t leaving any holes in that fabric of strategy as we look out across all of the different CT challenges that we face, while at the same time prioritizing where effort needs to be most energetically directed. And that of course right now would argue for a lot of effort to be directed at the challenges we’re facing in Syria and Iraq.

And Angus King askedwhy we don’t develop something akin to the Kennan containment strategy used against the Soviet Union.

Rasmussen: The strategies that we try to help produce at NCTC in support of the National Security Council staff — in my answer to Chairman Feinstein [sic] are typically whole of government strategies, not just relying on our intelligence capabilities or our military capabilities but also trying to take advantage of the abilities, the resources we have across the government to try to produce the conditions that would over time eat away at support for terrorism in some of these conflict locations, um, overseas. At the same time, we all go into it understanding well that those effort will ultimately take years if not decades to play out for us to reap the benefits of those kinds of strategies, and in the meantime, you’re left to manage a very difficult threat environment.

Note that, whatever Rasmussen’s commitment to the DSOP “accommodation” to share information with SSCI, he still seems to defer to NSC on this topic, even though the law says that NCTC should take the lead.

It may well be that the White House (properly, to a point) believes that strategic planning against terrorism is an inherent Executive function. But it doesn’t seem like the White House should be hiding all this — to whatever extent it is — from its Congressional overseers, particularly given how easily the fight against terrorism can turn into support for terrorism.

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Dianne Feinstein Describes the Data Handshake

I’m going to transcribe some comments Dianne Feinstein made Tuesday night about how proponents of USA Freedom Act got around a data mandate requiring telecoms to keep data longer than they otherwise would. The short version? Rather than a data mandate, USA Freedom Act would have relied on a data handshake.

I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.  Senator Chambliss and I wrote a letter to the four big telecoms, and we asked them if they would hold the data. The answer came back from two, yes. And the answer came back from two, no. Since that time, the situation has changed — not in writing — but by personal testament from two of the companies, that they will hold the data for at least two years for business reasons. Now here’s the problem. The mandate that was inherent in the 215 Act is gone. But the fact is that the telecoms have agreed to hold the data. The President himself has assured me of this.

I’ll write more on this, which is legally unbelievably fascinating. But for now, I just wanted to post it.

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Yes, the Government Does Spy Under Grandfathered Approvals

Charlie Savage is catching no end of shit today because he reported on a provision in the PATRIOT Act (one I just noticed Tuesday, actually, when finding the sunset language for something else) that specifies ongoing investigations may continue even after a sunset.

The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

The exception is obscure because it was recorded as a note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.

Now, I’m happy to give Savage shit when I think he deserves it. But I’m confident those attacking him now are wrong.

Before I get into why, let me first say that to some degree it is moot. The Administration believes that, legally, it needs no Congressional authorization to carry out the phone dragnet. None. What limits its ability to engage in the phone dragnet is not the law (at least not until some courts start striking the Administration’s interpretation down). It’s the willingness of the telecoms to cooperate. Right now, the government appears to have a significant problem forcing Verizon to fully cooperate. Without Verizon, you don’t have an effective dragnet, which is significantly what USA Freedom and other “reform” efforts are about, to coerce or entice Verizon’s full cooperation without at the same time creating a legal basis to kill the entire program.

That said, not only is Davidson likely absolutely correct, but there’s precedent at the FISA Court for broadly approving grandfathering claims that make dubious sense.

As Davidson noted elsewhere in Savage’s story, the FBI has ongoing enterprise investigations that don’t lapse — and almost certainly have not lapsed since 9/11. Indeed, that’s the investigation(s) the government appears, from declassified documents, to have argued the dragnet is “relevant” to. So while some claim this perverts the definition of “particular,” that’s not the word that’s really at issue here, it’s the “relevant to” interpretation that USAF leaves intact, effectively ratifying (this time with uncontested full knowledge of Congress) the 2004 redefinition of it that everyone agrees was batshit insane. If you want to prevent this from happening, you need to affirmatively correct that FISA opinion, not to mention not ratify the definition again, which USAF would do (as would a straight reauthorization of PATRIOT next year).

And as I said, there is precedent for this kind of grandfathering at FISA, all now in the public record thanks to the declassification of the Yahoo challenge documents (and all probably known to Davidson, given that he was a lead negotiator on FISA Amendments Act which included significant discussion about sunset procedures, which they lifted from PAA.

For starters, on January 15, 2008, in an opinion approving the certifications for Protect America Act submitted in August and September 2007, Colleen Kollar-Kotelly approved the grand-fathering of the earlier 2007 large content dockets based on the government’s argument that they had generally considered the same factors they promised to follow under the PAA certifications and would subject the data obtained to the post-collection procedures in the certifications. (See page 15ff)

Effectively then, this permitted them to continue collection under the older, weaker protections, under near year-long PAA certifications.

In the weeks immediately following Kollar-Kotelly’s approval of the underlying certifications (though there’s evidence they had planned the move as far back as October, before they served Directives on Yahoo), the government significantly reorganized their FAA program, bringing FBI into a central role in the process and almost certainly setting up the back door searches that have become so controversial. They submitted new certifications on January 31, 2008, on what was supposed to be the original expiration date of the PAA. As Kollar-Kotelly described in an June 18, 2008 opinion (starting at 30), that came to her in the form of new procedures received on February 12, 2008, 4 days before the final expiration date of PAA.

On February 12, 2008, the government filed in each of the 07 Dockets additional sets of procedures used by the Federal Bureau of Investigation(FBI) when that agency acquires foreign intelligence information under PAA authorities. These procedures were adopted pursuant to amendments made by the Attorney General and the Director of National Intelligence (DNI) on January 31, 2008 to the certifications in the 07 Dockets.

Then, several weeks later — and therefore several weeks after PAA expired on February 16, 2008 — the government submitted still new procedures.

On March 3, 2008, the government submitted NSA and FBI procedures in a new matter [redacted]

[snip]

Because the FBI and NSA procedures submitted in Docket No. [redacted] are quite similar to the procedures submitted in the 07 Dockets, the Court has consolidated these matters for purposes of its review under 50 U.S.C. § 1805c.

For the reasons explained below, the Court concludes that it retains jurisdiction to review the above-described procedures under §1805c. On the merits, the Court finds that the FBI procedures submitted in each of the 07 Dockets, and the NSA and FBI procedures submitted in Docket No. [redacted] satisfy the applicable review for clear error under 50 U.S.C. § 1805c(b).

She regarded these new procedures, submitted well after the law had expired, a modification of existing certifications.

In all [redacted] of the above-captioned dockets, the DNI and the Attorney General authorized acquisitions of foreign intelligence information by making or amending certifications prior to February 16, 2009, pursuant to provisions of the PAA codified at 50 U.S.C. § 1805b.

She did this in part by relying on Reggie Walton’s interim April 25, 2008 opinion in the Yahoo case that the revisions affecting Yahoo were still kosher, without, apparently, considering the very different status of procedures changed after the law had expired.

The government even considered itself to be spying with Yahoo under a September 2007 certification (that is, the latter of at least two certifications affecting Yahoo) past the July 10, 2008 passage of FISA Amendments Act, which imposed additional protections for US persons.

These are, admittedly, a slightly different case. In two cases, they amount to retaining older, less protective laws even after their replacement gets passed by Congress. In the third, it amounts to modifying procedures under a law that has already expired but remains active because of the later expiration date of the underlying certificate.

Still, this is all stuff the FISC has already approved.

The FISC also maintains — incorrectly in my opinion, but I’m not a FISC judge so they don’t much give a damn — that the 2010 and 2011 PATRIOT reauthorizations ratified everything the court had already approved, even the dragnets not explicitly laid out in the law. This sunset language was public, and there’s nothing exotic about what they say. To argue the FISC wouldn’t consider these valid clauses grand-fathering the dragnet, you’d have to argue they don’t believe the 2010 and 2011 reauthorizations ratified even the secret things already in place. That’s highly unlikely to happen, as it would bring the validity of their 40ish reauthorizations under question, which they’re not going to do.

Again, I think it’s moot. The “reform” process before us is about getting Verizon to engage in a dragnet that is not actually authorized by the law as written. They’re not doing what the government would like them to do now, so there’s no reason to believe this grandfathered language would lead them to suddenly do so.

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The 2009 Last Ditch Attempt to Undercut the FISA Court

As I laid out in this timeline, sometime in fall 2009, the NSA submitted an end-to-end report describing the Internet dragnet. Then, weeks later, David Kris wrote Reggie Walton, admitting that the had been collecting data outside the categories approved by Colleen Kollar-Kotelly in 2004 — that is, admitting that the rosy picture NSA had painted in its end-to-end report was entirely false. Sometime shortly thereafter, DOJ decided not to submit its Internet dragnet reauthorization application, effectively shutting down the Internet dragnet on or around October 30, 2009 until John “Bates-Stamp” Bates reauthorized it sometime around July 2010.

Which is why I find the discussion of the PATRIOT reauthorization during precisely that time period so interesting.

On October 1 the Senate Judiciary Committee had its first open hearing on PATRIOT reauthorization.  At that point, an effort to require Section 215 have particular ties to terrorism got shut down in an action we now know served to preserve the phone dragnet. The discussion around it created the interest for a classified briefing. On October 7, they got that briefing. Also on October 7, the Obama Administration gave Jeff Sessions a bunch of changes they wanted off of what the bill had been on October 1.

On October 8, the Senate Judiciary Committee had another open hearing on PATRIOT reauthorization. The committee adopted Sessions changes over DiFi’s already watered down version of what Pat Leahy had originally pushed on October 1 (this is what elicited Russ Feingold’s concerns about SJC acting as the Prosecutors Committee). The changes limited Section 215 protections for libraries, fixed the gag order problem with NSLs with a non-fix that is similar to one included in USA Freedom Act. Most significantly, they watered down what would have been new minimization procedures for the PRTT authority (which were ultimately stripped in any case), making clear minimization procedures should only be adopted in exceptional circumstances. As I guessed correctly at the time, this was probably done to protect the PRTT dragnet that was collecting vast amounts of Internet metadata (as well as, contrary to Jeff Sessons’ claims in the hearing, content).

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

By asserting it had the authority to impose minimization procedures on the Internet dragnet, the FISC tried, utterly unsuccessfully, to prevent the NSA from illegally wiretapping Americans. When the FISC again asserted its authority to impose minimization procedures, NSA just took its toys and went overseas, where it didn’t have that meanie rubber stamp FISC to contend with.

I raise this not only because it suggests DOJ was making legislative efforts to undercut the FISC just as they discovered a huge problem with their Internet dragnet. But also because, in my opinion, the USA Freedom Act makes a similar effort to withdraw any claim the court might make to be able to impose and review compliance with minimization procedures. I don’t think it’s an Internet dragnet this time — as I’ll write later, I think it’s either location (which is fairly banal) or more interesting flow analyses. But I think Congress — with the support of civil liberties NGOs, this time — is still trying to undercut the way that FISC has best been able to impose some controls on the government’s spying.

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Emptywheel Twitterverse

bmaz @cristianafarias I honestly see it as a 2-4 hr deal tops. But give some leeway, and day day and half at the most. Anything over that is nuts
6mreplyretweetfavorite
bmaz @neilkli @yeselson Listen, the entire process is controlled by the DA; you seem to think it is about witnesses. It's not.
11mreplyretweetfavorite
bmaz @neilkli @yeselson No, not when attending prosecutors are vouching for Wilson+ripping apart all negative witnesses+refusing to rec charge.
14mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley Intentionally trying to confuse GJ and take apart any element that wasn't pro Wilson.
28mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Exactly. That is a two day gig with either a 2nd degree or voluntary mans. indictment returned.
28mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley there are NEVER 20 witnesses on GJ case like this. 3-4 max inc. 1 investigator + 1 coroner
30mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley That said, real charge is prob. voluntary manslaughter. It was NOT an accident; was intent to shoot
32mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Anything other than a protected cop and this would have been charged as 2nd degree.
33mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Actually in any other case, prosecutor overcharges to allow for plea negotiation headroom.
33mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Add a day. Anything over two days on a single gun, single shooter is bizarre.
34mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Even any other single gun, single shooter homicide like this would take about 3hrs or less inc. deliberations
38mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Ahem. With due respect, the average grand jury presentation lasts less than an hour. #ComeOnMan
47mreplyretweetfavorite
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