Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?
It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.
Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.
The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.
They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.
Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.
The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.
DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.
And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”
You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?
Nope, neither do I.
This group of documents — all released with this dump — all come from the first couple of months of 2009. The following is my best reconstruction of what they mean; please let me know if you catch any problems with it.
The government noticed Reggie Walton of the “alert function” violation in the phone dragnet on January 15. On January 28, he ordered further reporting on those problems; because he knew the Internet dragnet was similar, he also ordered the government to “determine whether NSA bas been processing the electronic communications metadata in accordance with the terms of the Court’s orders.” In response, the government submitted documents M (Government’s Response) and N (Keith Alexander’s declaration), probably on February 15, 2009. While the report claimed (and NSA reported to Congress) only one Internet dragnet practice violated FISC’s orders, there were multiple practices that involved contact chaining beyond two hops, as well as chaining on US persons without First Amendment review. A number of these, however, remain redacted.
As part of report M, the government said it would voluntarily adopt additional oversight mechanisms, as described on page 6-7. One of those mechanisms was an assessment meeting including representatives from DOJ’s National Security Division and NSA’s Office of General Counsel.
Shortly thereafter (I suspect it was after February 25; it may have been between March 5 and March 13, because M and N appear to have been provided to Congress on March 5, the remainder on March 13), the government applied for another Internet dragnet order. That application consisted of AA (the application), BB (the NSA rep’s declaration), and HH (the 90-day report and the NSA/NSD meeting report).
The application reflects several changes from the previous one (see page 3 and 22), all of which reflect changes in response to the early phone and Internet dragnet disclosures. Of particular note, it removed all mention of “archives;” in the phone dragnet and it appears the Internet dragnet, NSA had used “archive” as a gimmick word to allow them to double dip in the dragnet data. In addition, it incorporates the things submitted as voluntary oversight improvements, especially the meeting reported in HH. They also added language about techs accessing the data, language which would change over the year.
The 90-day report was written after Walton started dealing with the violations. For example, it refers to a “broken” process (which happened with one of the phone dragnet fixes; this may have happened on February 20, but will need to double check). Also, it describes the End-to-End report. But it submits several methods of RAS approval (see page 7 of the 90-day report) that had been described in the Alexander declaration that Walton pointedly disapproved in his Primary Order (see page 10).
Walton also added the “additional oversight mechanisms,” which the government had presented as voluntary in their February report, as mandatory in his order.
See below the rule for individualized notes. Continue reading
Well, that didn’t take long. On Friday, John Kerry made a second pass at getting Abdullah Abdullah and Ashraf Ghani to make nice. This time he even produced a signed document (probably) to go along with the happy photos. And then yesterday the Washington Post announced that Ghani already is backing down on the whole shared power concept:
Ashraf Ghani, one of two candidates competing to become Afghanistan’s president, said Tuesday that the deadline to finish a vote recount is slipping and that a U.S.-brokered agreement for the rivals to form a joint government afterward does not mean the winner will fully share power with the loser.
Speaking to foreign journalists at his fortified compound in the capital, Ghani appeared to be trying to tamp down a surge of discontent among his supporters and allies, many of whom are reportedly upset that he agreed under U.S. pressure to a full recount of ballots from the troubled presidential runoff in June and the formation of a “unity” government with his rival.
On Friday, Ghani restated those pledges during a visit by Secretary of State John F. Kerry. But on Tuesday, he sought to clarify that he has not agreed to a power-sharing agreement with former foreign minister Abdullah Abdullah. Ghani said the winner will appoint the loser “by decree” as a chief executive to serve “at the discretion of the president.” Abdullah has demanded more authority if he loses.
After a false start earlier, the work on developing the real power sharing agreement was slated to start today:
The joint committee assigned by the two presidential candidates and expected to hash out the details of their power-sharing agreement is expected to begin its work on Wednesday, according to representatives of both campaigns.
The joint committee was initially expected to start work last Saturday, a day after the three article declaration about the broad structure of the national unity government was signed by both candidates. However, disagreements over the join committee were said to have stalled the start of negotiations until now.
Abullah Abdullah’s First Vice President, Mohammad Khan, has said on that the committee will have a total of thirty members representing both candidates. According to Fizullah Zaki, a spokesman for Ashraf Ghani Ahmadzai’s team, both teams nominated 15 representatives on Tuesday.
With 15 negotiators on each side, I would expect that the first week or two of the negotiations will resolve such crucial issues as the shape of the table and the length of the breaks between sessions. They might also want to make a “no punching” rule, as there appears to have been another fight today while ballots were being reviewed. It’s hard to see how Kerry could make a third trip to put the power sharing back on course since the first two have been such spectacular failures.
Combining the poor outlook for a power sharing agreement with the continued disruptions in auditing ballots puts the next “deadline” in a huge amount of doubt:
The NATO coalition will be forced to make a decision on its continued role in Afghanistan without a Bilateral Security Agreement (BSA) in place if the Afghan presidential election does not meet a conclusion soon, NATO Secretary-General Andres Fog Rasmussen warned on Monday.
The senior NATO official indicated continued military support, including a post-withdraw troop presence for training and advising purposes, as well as broader financial aid to Afghanistan, would likely be impossible if the BSA is not signed by a new Afghan president before the NATO summit begins on September 4.
“Soon we will have to take tough decisions, because if there is not a legal basis for our continued presence in Afghanistan, we will have to withdraw everything by the end of this year and to do that we will have to start planning … very soon,” Rasmussen told Reuters on Monday.
Obama has a very easy way out here. If there still is no resolution to the election by the time of the NATO summit, he can paint the decision to withdraw completely from Afghanistan as a NATO decision rather than a US decision. Yes, a number of earlier deadlines in this process have been ignored, but it is very hard to see how NATO would agree to remain in Afghanistan without a BSA signed by a new president. Although the neocons likely would return to Iraq-era “no permission slip needed” rhetoric urging Obama to keep troops there even without any other NATO allies, I don’t seen how he would do that.
We are less than a month away from what almost certainly will be a decision to withdraw fully from a war that has been one of the most badly managed efforts in our country’s history. We have squandered about a trillion dollars, killed untold numbers of civilians, lost far too many troops and will leave a country that is wracked by devastation and a huge increase in corruption. Obama will be blamed for losing Afghanistan just as surely as he is now being blamed for losing Iraq, but in both cases, the entire country should share the blame for empowering amoral leaders who know only death, destruction and corruption.
Wired has a very fascinating interview with Edward Snowden. You should go read the whole thing, among other things, for the swell picture of Snowden posing with Michael Hayden at some black tie event in 2011.
But I wanted to point to this incident.
One day an intelligence officer told him that TAO—a division of NSA hackers—had attempted in 2012 to remotely install an exploit in one of the core routers at a major Internet service provider in Syria, which was in the midst of a prolonged civil war. This would have given the NSA access to email and other Internet traffic from much of the country. But something went wrong, and the router was bricked instead—rendered totally inoperable. The failure of this router caused Syria to suddenly lose all connection to the Internet—although the public didn’t know that the US government was responsible. (This is the first time the claim has been revealed.)
Inside the TAO operations center, the panicked government hackers had what Snowden calls an “oh shit” moment. They raced to remotely repair the router, desperate to cover their tracks and prevent the Syrians from discovering the sophisticated infiltration software used to access the network. But because the router was bricked, they were powerless to fix the problem.
Fortunately for the NSA, the Syrians were apparently more focused on restoring the nation’s Internet than on tracking down the cause of the outage. Back at TAO’s operations center, the tension was broken with a joke that contained more than a little truth: “If we get caught, we can always point the finger at Israel.”
I assume — but am not certain — this was the outage in question. If so, the response is instructive. At least 3 US-based Internet security firms reported that Syria had brought down the Internet. Were they making stuff up, unable to determine what really happened, or just repeating something US officials told them?
I’m just as interested that — just 6 months after David Sanger’s reporting on how the Israelis let StuxNet escape…
An error in the code, they said, had led it to spread to an engineer’s computer when it was hooked up to the centrifuges. When the engineer left Natanz and connected the computer to the Internet, the American- and Israeli-made bug failed to recognize that its environment had changed. It began replicating itself all around the world. Suddenly, the code was exposed, though its intent would not be clear, at least to ordinary computer users.
“We think there was a modification done by the Israelis,” one of the briefers told the president, “and we don’t know if we were part of that activity.”
NSA’s hackers joked they might hide a major fuck-up by blaming Israel.
I’m sure that’s all just a coinkydink, though.
Newly declassified court documents show one of the National Security Agency’s key surveillance programs was plagued by years of “systemic overcollection” of private Internet communications.
Some of the problems with Internet metadata previously were reported and have been part of a broad critique of the NSA’s surveillance activities since the Sept. 11, 2001, terror attacks. The new document from Judge Bates offers the most detailed accounting—even with more than a dozen pages blacked out—of what those problems were.
Sure, ODNI didn’t explain that the opinion – and three other documents released — had been released before, one on multiple occasions. But those of us who read the opinion with the first release, rather than offering up unrepresentative quotes, recognized Bates’ memo as one of the seminal releases from last year. And contrary to WSJ’s claim, the public record (including Claire Eagan’s opinion, which cites from it) shows the opinion to date to 2010.
Even in this supposed actual reading of the document, however, WSJ gets it wrong.
The judge’s order ultimately reauthorized the program, with more stringent conditions than the government had sought.
Sure, Bates didn’t permit NSA unrestricted access to illegally collected records. But Bates also approved what was described as an 11- to 24-fold increase in collection.
The current application, in comparison with prior dockets, seeks authority to acquire a much larger volume of metadata at a greatly expanded range of facilities, while also modifying — and in some ways relaxing — the rules governing the handling of metadata.
Best as we can tell given the redactions, Bates approved that part of the request. Aside from imposing a few more training requirements, his biggest denial pertained to some — but not all — of the Internet dragnet data the government collected since the beginning of the program.
So while it is true that Bates wrote a lot of scathing things about the conduct of the program, he also turned around and vastly expanded it.
I raise all this not to be an asshole (though it would be nice if the WSJ had issued a correction, as its author retweeted my tweeted correction). I raise it for two reasons.
First, the WSJ pitches this as “the Judge who doesn’t like FISA reform was very critical of the Administration’s performance.”
Judge Bates has been the designated spokesman for the judiciary opposing several proposed changes to the structure of the Foreign Intelligence Surveillance Court, particularly the addition of a special advocate to represent privacy interests.
By not reporting that Bates vastly expanded this program in spite of its persistent violations, WSJ wrongly pitches him as a credible judge of what makes the FISC effective, rather than as Exhibit One for why it should be abolished.
Moreover, the documents that actually were newly released the other day suggest a very different narrative for what happened between 2009 and 2010, for how Bates came to summarize the many failings of the program but expand the program.
They show, first of all, that Reggie Walton was dealing with the phone and Internet dragnets in tandem throughout; Bates had no discernible role — aside from his intervention on August 4, 2009, after Reggie Walton had already shut down part of the phone dragnet program. The documents released this week make it clear Walton, not Bates, was the fact-finder who discovered the Internet dragnet had never complied with FISC guidelines. Bates had to repeat that scathing language in his opinion, because Walton had already laid it out.
That’s when we begin to see solicitous letters — “Let me once again thank both you and your staff for your consideration” — to Bates, now the decision-maker on whether or not the government could resume a program that had illegally wiretapped Americans for 5 years.
It’s that guy who capitulated to pretty talk, expanding both the Internet dragnet and the upstream 702 collection, even as he laid out how both had been illegally wiretapping Americans, who says an advocate actually speaking for privacy would ruin the FISC. That’s the narrative we should get from this recent document dump, not that Bates was in any way anything but a Bates stamp.
Walton was by no means a perfect steward of the secret court. But Bates demonstrates why it cannot and does not fulfill its function.
Towards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.
Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.
This is why you should not have secret courts.
I get making an aggressive push to authorize dragnet surveillance.
I get mining old and foreign dictionaries to come up with a definition that suits your needs.
But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.
But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.
Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”
This will be a closer working thread on documents released yesterday.
X: Initial Dragnet Application (prior to July 14, 2004)
(2) From the start, the government said they wanted to disseminate the dragnet info, perhaps to tag into FBI’s investigative authorities.
(2) The footnote defining metadata hides all the stuff not associated with “standard e-mails.”
(4) The application discusses the briefing I discussed here, attended by (among others) John Brennan.
(5) The application is not submitted by a lawyer, but by Michael Hayden.
(6) The government hasn’t released a Tenet submission; back in November it hid that this submission was from him.
(16) ODNI maintains that the fictional example of metadata is classified.
(18) Originally access was restricted by making the metadata accessible only by 2 admin login accounts. That’s probably a carry-over from the compartments of the illegal program.
(20) RAS approval assigned to the same 7 authorizers that were in place for the beginning of the phone dragnet in 2006.
(21) They’re hiding at least one kind of Internet metadata.
(23) Metadata originally accessible for only 18 months. Is that what they used for the illegal dragnet?
Y. Memo of Law in Support of Original Dragnet Application, before July 14, 2004
(4) The government claims that only email metadata related to terrorism will be seen. By definition, that means anything returned in a query would be related to counterterrorism and therefore game for dissemination.
(4) This is the jist of the illegal use of PRTT for the dragnet:
Nevertheless, it involves nothing more than adapting the traditional tools of FISA to meet an unprecedented challenge and does so in a way that promotes both of the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.
This claim is followed by a 5-page redaction, which is mighty interesting as it would have to explain why this judicial review was so useful.
(9) Footnote 5 again makes it clear that this involves email and other online communications.
(12) This language is remarkable for a secret court document.
Collecting and archiving meta data is thus the best avenue for solving this fundamental problem: although investigators do know know exactly where the terrorists’ communications are hiding in the billions of bits of data flowing through the United States today, we do know that they are there, and if we archive the data now, we will be able to use it in a targeted way to find the terrorists tomorrow.
(20) This language is particularly important given debates about USA Freedom.
Nothing in the definitions of pen registers or trap and trace devices requires that the “instrument” or “facility” on which the device is placed carry the communications solely of a single user.
(20) This section really tries to constrain the Court.
Unlike certain other certifications made in other contexts under the statute, see, e.g., U.S.C. § 1805(a)(5), FISA does not subject the certification of relevance to any review by the Court.
If you didn’t already need proof that the FISA Court needs to consult technical advisors before they permit the government to collect all of Americans’ metadata, consider this lesson DOJ offered as part of its initial application for the Internet dragnet (see page 16).
Of course, you’re prohibited from seeing the better part of that lesson — the fictional example of metadata they offered — because James Clapper has deemed it classified.
Funny. Eric Holder recently claimed in a Congressional hearing that if something’s not true it’s not classified. I guess the fictions they tell FISC judges are another matter.
This timeline provides known dates for the PRTT Internet dragnet, important related dates in the phone dragnet, upstream 702 collection, and SPCMA (overseas Internet dragnet). In addition, it provides links to the documents in this release; see this post for the listing of documents.
May 6, 2004: Jack Goldsmith opinion authorizes phone dragnet but not Internet dragnet.
Before July 14, 2004: Government applies for Internet dragnet. X. Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes, Y. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes, Z. Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application
July 14, 2004: Colleen Kollar-Kotelly approves Internet dragnet, specifies categories of metadata (Document A in 8/12 dump).
Before October 12, 2004: the government provides notice it exceeded scope included in first order, in follow-up declarations attributes overcollection to poor management (response probably includes Paul Wolfowitz, Michael Hayden, and Joel Brenner)
Around October 12, 2004: Government reapplies without some collection, promises monthly spot checks.
April 27, 2005: In briefing leading up to PATRIOT reauthorization, Alberto Gonzales makes no mention of PRTT Internet dragnet.
November 17, 2007: Executive begins (internal) approval process for contact chaining on already-collected data which will become SPCMA.
Barack Obama faces a huge amount of pressure during the current meltdown of Iraq because he withdrew all US military forces from the country. As I have pointed out in countless posts, the single controlling factor for that withdrawal was that Iraq refused to provide criminal immunity to US troops who remained in Iraq past December 31, 2011.
A very similar scenario is playing out now in Afghanistan. Hamid Karzai has refused to sign the Bilateral Security Agreement that will provide criminal immunity to US troops remaining beyond the end of this year. Both Abdullah Abdullah and Ashraf Ghani have stated that they will sign the BSA immediately upon taking office, but the recount of their runoff election remains mired in dysfunction over how to eliminate fraudulent votes. John Kerry has visited twice to get the candidates to cease sparring, but dysfunction has quickly ensued after both visits. Meanwhile, the clock ticks ever closer to expiration of the current agreement providing immunity.
All along, the US framing for insisting on criminal immunity for troops is based on avoiding the chaos of soldiers facing false charges that might be brought through a court system that lacks the safeguards of the US court system or even the US military courts. But a report (pdf) released Friday by Amnesty International provides solid evidence that the US has failed, on multiple verified occasions, to take any action to pursue those responsible for clear war crimes in Afghanistan. That stands out to me as the real reason the US insists on criminal immunity.
Amnesty sums up their findings in the press release accompanying the report:
Focusing primarily on air strikes and night raids carried out by US forces, including Special Operations Forces, Left in the Dark finds that even apparent war crimes have gone uninvestigated and unpunished.
“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.
“None of the cases that we looked into – involving more than 140 civilian deaths – were prosecuted by the US military. Evidence of possible war crimes and unlawful killings has seemingly been ignored.”
The description continues:
Two of the case studies — involving a Special Operations Forces raid on a house in Paktia province in 2010, and enforced disappearances, torture, and killings in Nerkh and Maidan Shahr districts, Wardak province, in November 2012 to February 2013 — involve abundant and compelling evidence of war crimes. No one has been criminally prosecuted for either of the incidents.
Qandi Agha, a former detainee held by US Special Forces in Nerkh in late 2012, spoke of the daily torture sessions he endured. “Four people beat me with cables. They tied my legs together and beat the soles of my feet with a wooden stick. They punched me in the face and kicked me. They hit my head on the floor.” He also said he was dunked in a barrel of water and given electrical shocks.
Agha said that both US and Afghan forces participated in the torture sessions. He also said that four of the eight prisoners held with him were killed while he was in US custody, including one person, Sayed Muhammed, whose killing he witnessed.
Of course, the US claims that while it wants troops immune from prosecution in Afghanistan under trumped up charges, crimes will be investigated by US authorities. The Amnesty report puts that lie to rest. Again, from the press release:
Of the scores of witnesses, victims and family members Amnesty International spoke to when researching this report, only two people said that they had been interviewed by US military investigators. In many of the cases covered in the report, US military or NATO spokespeople would announce that an investigation was being carried out, but would not release any further information about the progress of the investigation or its findings – leaving victims and family members in the dark.
“We urge the US military to immediately investigate all the cases documented in our report, and all other cases where civilians have been killed. The victims and their family members deserve justice,” said Richard Bennett.
Yeah, I’m sure the military will get right on that. Sometime in the next century or two.
The report provides three recommendations to the government of Afghanistan:
Create a credible, independent mechanism to monitor, investigate and report publicly on civilian deaths and injuries caused by the ANSF, and to ensure timely and effective remedies. This mechanism should include detailed procedures for recording casualties, receiving claims, conducting investigations, carrying out disciplinary measures including prosecutions where warranted, and ensuring reparation, including restitution, compensation, and rehabilitation.
Ensure that accountability for civilian casualties is guaranteed in any future bilateral security agreements signed with NATO and the United States, including by requiring that international forces provide a regular accounting of any incidents of civilian casualties, the results of investigations into such incidents, and the progress of any related prosecutions. Such agreements should exclude any provision that might infringe upon Afghanistan’s obligations under the Rome Statute of the International Criminal Court.
Continue to press the US and NATO authorities to take meaningful steps to enhance civilian protection, investigate reports of civilian casualties, and prosecute violations of international humanitarian law that result in civilian casualties.
Those recommendations are terrific, but they are completely meaningless when applied to what is really happening in Afghanistan. None of the good things in that list have any chance of even making it into the language of the already negotiated BSA, and even if they did, no enforcement of it would ever be allowed. After all, the US is the country that even has passed a law allowing use of military force to “rescue” any citizen facing charges in the ICC. It doesn’t matter whether George W. Bush or Barack Obama is the Commander in Chief, the US military will go wherever it wants, kill whoever it wants, and allow the vast majority of its crimes to go without consequence.
That is the particular freedom they hate us for.