As I noted last week, from the start of the dragnet programs, neither the Court nor the government appear to have considered the implications dragnet analysis had for Freedom of Association.
Several of the training documents released last week — notably this August 29, 2008 NSA Memo — suggest the NSA reconsidered the associational implications of the dragnet in 2008. Nevertheless, in a document that appears to reflect an August 20, 2008 effort to protect associations, the NSA continued to use at least some associations as evidence of terrorist affiliation.
The rules on dragnet queries changed on August 20, 2008
As I noted some weeks ago, the government has withheld at least 3 FISC opinions pertaining to Section 215; one of the withheld opinions is dated August 20, 2008. This memo, written 9 days later, lays out the legal standard for contact-chaining for both the phone and Internet dragnet programs as described in two 2008 dockets.
Specifically, the memo elaborates on the legal standard applicable to the contact-chaining activities in which SID offices engage pursuant to Business Records Order 08-08 (as well as subsequent Orders for the production of telephony records)1 as well as to the contact chaining activities in which SID analysts engage pursuant to the Pen Register and Trap and Trace Order 08-110 (as well as subsequent Pen/Trap Orders ).
The documents must be the most recent, given the way the memo applies this standard to orders going forward. And it replaces an earlier memo, written just months after the start of the phone dragnet.
OGC memorandum dated October 13, 2006, same subject, is canceled. This memorandum updates the prior memorandum to reflect changes in the Foreign Intelligence Surveillance Court (FISC) authorizations specifically authorizing access to the data acquired under the Orders for analysis related to [redacted -- probably describes terrorism subjects] The substantive guidance concerning the application of the “reasonable articulable suspicion” standard with respect to the authorizations remains unchanged.
All of which strongly suggests this memo served to incorporate whatever changes the August 2008 opinion made into NSA practice.
The change in the rules pertain to the treatment of association
The structure of the memo — along with the footnote’s explanation that the standards for Reasonable Articulable Suspicion (cited above) have not changed — suggest that what did change pertains to Association.
After an introductory section, the memo has this structure:
A. Summary of the [RAS] Standard
B. Association with [redacted -- probably terrorist targets]
C. First Amendment Considerations
In other words, the memo seems to assess the impact of an August 20, 2008 FISC opinion commenting on the degree to which First Amendment protected activity may serve as proof of a tie (an association) to a terrorist organization.
Regardless of what the FISC said, association is the same thing as membership
Before I lay out the logic dismissing any associational concerns presented by using phone contacts to assume a tie to terrorism, let me get to the punch line. After explaining that simply lobbying a member of Congress to “cut off funding for U.S. troops in Iraq” does not prove an association with terrorism (though some other NSA documents suggest it may have been regarded as such at one time), the memo explains that in some circumstances direct contact can do so.
But, as we have already made clear, we do not read the Order to preclude under all circumstances the conclusion that a number is associated with [redacted -- probably terrorist groups] solely on the basis of its communications [redacted] and, more specifically, based on its contacts with numbers about which NSA has the appropriate level of suspicion. Our conclusion is supported by First Amendment law, as we discuss below.
In a footnote on that same page, the memo makes a breathtaking conflation of “member” and “associated with” a terrorist group.
We note also that the very object of the overall effort supported by these Orders is to determine whether or not particular individuals are members of or are associated with the terrorist organizations named in the Orders. Thus, under these Orders, simply by being a member of a named group one becomes subject to government scrutiny. [my emphasis]
That is, NSA sets out to argue that, regardless of whatever that FISC opinion states, association with a terrorist group (provided that they engage in direct contact) amounts to membership in it.
And here’s how that analysis ends up. Continue reading