ACLU

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Spy vs. Spy, Theresa Shea vs. Theresa Shea

The government has submitted its response to ACLU’s appeal of its lawsuit challenging the Section 215 dragnet.

This passage, which reminded me of the old Mad Magazine Spy vs. Spy comic, made me pee my pants in laughter.

Various details of the program remain classified, precluding further explanation here of its scope, but the absence of those details cannot justify unsupported assumptions. For example, the record does not support the conclusion that the program collects “virtually all telephony metadata” about telephone calls made or received in the United States. SPA 32, quoted in Pl. Br. 12; see also, e.g., Pl. Br. 1-2, 23, 24, 25, 48, 58. Nor is that conclusion correct. See Supp. Decl. of Teresa H. Shea ¶ 7, First Unitarian Church of Los Angeles v. NSA, No. 4:13cv3287 (filed Feb. 21, 2014).3

3 The precise scope of the program is immaterial, however, because, as we explain, the government should prevail as a matter of law even if the scope of the program were as plaintiffs describe. [my emphasis]

Note that they’re citing a declaration from SIGINT Director Theresa Shea submitted in another case, the EFF challenge to the phone dragnet? They’re citing that Shea declaration rather than the one Shea submitted in this very case.

In her declaration submitted in this case in October, Shea said NSA collected all the call records from the providers subject to Section 215.

Pursuant to Section 215, the FBI obtains from the FISC directing certain telecommunications service providers to produce all business records created by them (known as call detail records) that contain information about communications between telephone numbers, generally relating to telephone calls made between the U.S. and a foreign country and calls made entirely within the U.S. (¶14) [my emphasis]

Not all providers. But for the providers in question, “all business records.”

Remember, ACLU is suing on their own behalf, and they are Verizon customers. We know Verizon is one of the providers in question, and Shea has told us that providers in question, of which Verizon is one, provide “all business records.”

Theresa Shea, in a declaration submitted in the suit in question: “All.”

Rather than citing the declaration submitted in this suit, the government instead cites a declaration Shea submitted all the way across the country in the EFF suit, one she submitted four months later, after both the ACLU and Judicial Watch suits had been decided at the District level.

Ostensibly written to describe the changes in scope the President rolled out in January, Shea submitted a new claim about the scope of the program in which she insisted that the program (ignoring, of course, that Section 215 is just a small part of the larger dragnet) does not collect “all.”

Although there has been speculation that the NSA, under this program, acquires metadata relating to all telephone calls to, from, or within the United States, that is not the case. The Government has acknowledged that the program is broad in scope and involves the collection and aggregation of a large volume of data from multiple telecommunications service providers, but as the FISC observed in a decision last year, it has never captured information on all (or virtually all) calls made and/or received in the U.S. See In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], Dkt. No. BR13-109 Amended Mem. Op. at 4 n.5 (F.I.S.C. Aug. 29, 2013) (publicly released, unclassified version) (“The production of all call detail records of all persons in the States has never occurred under under this program.“) And while the Government has also acknowledged that one provider was the recipient of a now-expired April 23, 2013, Secondary Order from the FISC (Exhibit B to my earlier declaration), the identities of the carriers participating in the program(either now, or at any time in the past) otherwise remain classified. [my emphasis]

I explained in detail how dishonest a citation Theresa Shea’s newfound embrace of “not-all” is.

Here, she’s selectively citing the declassified August 29, 2013 version of Claire Eagan’s July 19, 2013 opinion. The latter date is significant, given that the day the government submitted the application tied to that order, NSA General Counsel Raj De made it clearthere were 3 providers in the program (see after 18:00 in the third video). These are understood to be AT&T, Sprint, and Verizon.

Shea selectively focuses on language that describes some limits on the dragnet. She could also note that Eagan’s opinion quoted language suggesting the dragnet (at least in 2011) collected “substantially all” of the phone records from the providers in question, but she doesn’t, perhaps because it would present problems for her “virtually all” claim.

Moreover, Shea’s reference to “production of all call detail records” appears to have a different meaning than she suggests it has when read in context. Here’s what the actual language of the opinion says.

Specifically, the government requested Orders from this Court to obtain certain business records of specified telephone service providers. Those telephone company business records consist of a very large volume of each company’s call detail records or telephony metadata, but expressly exclude the contents of any communication; the name, address, or financial information of any subscriber or customer; or any cell site location information (CSLI). Primary Ord. at 3 n.l.5

5 In the event that the government seeks the production of CSLI as part of the bulk production of call detail records in the future, the government would be required to provide notice and briefing to this Court pursuant to FISC Rule 11. The production of all call detail records of all persons in the United States has never occurred under this program. For example, the government [redacted][my emphasis]

In context, the reference discusses not just whether the records of all the calls from all US telecom providers (AT&T, Sprint, and Verizon, which participated in this program on the date Eagan wrote the opinion, but also T-Mobile and Cricket, plus VOIP providers like Microsoft, owner of Skype, which did not) are turned over, but also whether each provider that does participate (AT&T, Sprint, and Verizon) turns over all the records on each call. The passage makes clear they don’t do the latter; AT&T, Sprint, and Verizon don’t turn over financial data, name, or cell location, for example! And since we know that at the time Eagan wrote this opinion, there were just those 3 providers participating, clearly the records of providers that didn’t use the backbone of those 3 providers or, in the case of Skype, would be inaccessible, would be missed. So not all call detail records from the providers that do provide records, nor records covering all the people in the US. But still a “very large volume” from AT&T, Sprint, and Verizon, the providers that happen to be covered by the suit.

That is, in context, the “all call detail records of all persons in the United States has never occurred” claim meant that even for the providers obligated under the order in question — AT&T, Sprint, and Verizon — there were parts of the call records (like the financial information) they didn’t turn over, though they turned over records for all calls. That’s consistent with Eagan’s quotation of the “virtually all” records with respect to the providers in question.

But by citing it disingenuously, Shea utterly changes the meaning Eagan accorded it.

Theresa Shea, disingenuously citing a declaration submitted in another suit: “Not all.”

It’s like the hilarity of Mad Magazine’s old Spy vs. Spy comics. Only in this case, it pits top spy Theresa Shea against top spy Theresa Shea.

Judge Collyer’s Factually Erroneous Freelance Rubber Stamp for Killing American Citizens

As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.

The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)

The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.

On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.

MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.

Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.

Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.

As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.

Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.

The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:

  • AQAP’s status vis a vis al Qaeda
  • Whether the US is in an armed conflict with AQAP
  • The basis for Awlaki’s listing as a Special Designated Global Terrorist

Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.

The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Continue reading

FISA Court Finally Discovers a Limit to the Word “Relevant”

A few weeks back I laughed that, in a probable attempt to score political points against those challenging the phone dragnet by asking to retain the phone dragnet longer than 5 years, DOJ had shown a rather unusual concern for defendant’s rights.

Judge Reggie Walton has just denied DOJ’s motion. In doing so he has found limits to the word “relevant” that otherwise seem unheard of at the FISC in recent memory.

For its part, the government makes no attempt to explain why it believes the records that are subject to destruction are relevant to the civil cases. The government merely notes that “‘[r]elevant’ in this context means relevant for purposes of discovery, … including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence.” Motion at 6. Similarly, the government asserts that “[b]ased on the issues raised by Plaintiffs,” the information must be retained, but it fails to identify what those issues are and how the records might shed light on them. Id. at 7. Finally, the motion asserts, without any explanation, that “[b]ased on the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only the BR metadata specifically relevant to the identified lawsuits.” Id. Of course, questions of relevance are ultimately matters for the courts entertaining the civil litigation to resolve. But the government now requests this Court to afford substantial weight to the purported interests of the civil litigants in retaining the BR metadata relative to the primary interests of the United States persons whose information the government seeks to retain. The government’s motion provides scant basis for doing so.

Shew. Given the way FISC has been defining the word “relevant” since 2004 to mean “virtually all,” I had thought the word had become utterly meaningless.

At least we know the word “relevant” has some limits at FISC, even if they’re unbelievably broad.

Mind you, I’m not sure whether FISC or the government is right in this case, as I do have concerns about the data from the troubled period during 2009 aging off.

But I will at least take some Friday afternoon amusement that the FISC just scolded the government about the word “relevant.”

NSA’s Data Retention Oddities

NSA’s defenders are enjoying this one: WSJ says that NSA may temporarily have to expand the phone dragnet (it really means retain more data) because of all the lawsuits to end it.

A number of government lawyers involved in lawsuits over the NSA phone-records program believe federal-court rules on preserving evidence related to lawsuits require the agency to stop routinely destroying older phone records, according to people familiar with the discussions. As a result, the government would expand the database beyond its original intent, at least while the lawsuits are active.

No final decision has been made to preserve the data, officials said, and one official said that even if a decision is made to retain the information, it would be held only for the purpose of litigation and not be subject to searches.

There is actually a precedent for this. In 2009, as NSA was trying to clean up its alert list and other violations, it told the FISA Court it might not be able destroy all the alert notices because of ongoing litigation.

With respect to the alert process, after this compliance matter surfaced, NSA identified and eliminated analyst access to all alerts that were generated from the comparison of non-RAS approved identifiers against the incoming BR FISA material. The only individuals who retain continued access to this class of alerts are the Technical Director for NSA’s Homeland Security Analysis Center (“HSAC”) and two system developers assigned to HSAC. From a technical standpoint, NSA believes it could purge copies of any alerts that were generated from comparisons of the incoming BR FISA information against non-RAS approved identifiers on the alert list. However, the Agency, in consultation with DoJ, would need to determine whether such action would conflict with a data preservation Order the Agency has received in an ongoing litigation matter.

Though I can’t think of any follow-up confirming whether NSA believed this massive violation should or should not be retained in light of ongoing litigation.

As EFF’s Cindy Cohn notes in the WSJ article, if NSA should be retaining data, it should date back to when a judge first issued a preservation order.

Cindy Cohn, legal director at the Electronic Frontier Foundation, which also is suing over the program, said the government should save the phone records, as long as they aren’t still searchable under the program. “If they’re destroying evidence, that would be a crime,” she said.

Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&Tcustomers. What the government is considering now is far broader.

Though when I saw reference to the litigation in the 2009 filing, I wondered whether it might be either the al-Haramain suit or one of the dragnet suits, potentially including EFF’s suit.

Here’s what confuses me about all this data retention business.

If the NSA is so cautious about retaining evidence in case of a potential crime, then why did it just blast away the 3,000 files of phone dragnet information they found stashed on a random server, which may or may not have been mingled in with STELLAR WIND data it found in 2012? Here’s how PCLOB describes the data and its destruction, which differs in some ways from the way NSA described it to itself internally.

In one incident, NSA technical personnel discovered a technical server with nearly 3,000 files containing call detail records that were more than five years old, but that had not been destroyed in accordance with the applicable retention rules. These files were among those used in connection with a migration of call detail records to a new system. Because a single file may contain more than one call detail record, and because the files were promptly destroyed by agency technical personnel, the NSA could not provide an estimate regarding the volume of calling records that were retained beyond the five-year limit.

According to the NSA, they didn’t know how or why or when the data ended up where it wasn’t supposed to be or even if it had really been retained past the age-off date.

Heck, those 3,000 files potentially mixed up with STELLAR WIND data seem like precisely the kind of thing EFF’s Jewel suit might need to access.

But it’s all gone!

One final detail. Here’s how WSJ says the system currently ages off data.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

This is not how witnesses have consistently described the age-off system. It adds up to 6 months on the age-off, in what appears to be non-compliance with the unredacted parts of the phone dragnet orders.

Update: Adding one more thing. WSJ suggests NSA may have to keep the data because it might help some of the plaintiffs get standing. The only way that’s true is if NSA stopped getting Verizon cell data from Verizon starting in 2009.

For most of the plaintiffs, standing should be no problem They’re Verizon Business Service customers. But Larry Klayman is just a cell phone customer. A 5-year age off (ignoring the semi-annual purge detail) would mean they’d be getting rid of data collected in February 2009, just as NSA was working through the violations and before the May 29, 2009 order for Verizon to stop handing over its foreign data (also before Reggie Walton shut down Verizon production for a 3 month period later in 2009). I’m not sure I buy all that, but it is the only way standing might depend on data retention.

Judge Pauley’s Deliberate Blind Spot: Systematic Section 215 Abuses

Sorry for my silence of late, particularly regarding William Pauley’s ruling finding the phone dragnet legal. The good news is my mom can now reach the light switch in her sewing room without risk of falling.

As noted, Judge Pauley ruled against the ACLU in their suit challenging the phone dragnet. A number of commentators have pointed to some bizarre errors or focus in Pauley’s ruling, including,

  • Pauley says the government could not find the “gossamer threads” of terrorist plotters leading up to 9/11. They did find them. They simply didn’t act appropriately with them.
  • He unquestioningly considers the 3 uses of Section 215 (with Zazi, Headley, and Ouazzani) proof that it is effective. He does not note that even Keith Alexander has admitted it was only critical in one case, one not even mentioned in the government’s filings in this case.
  • He ignores the role of the Executive in willingly declassifying many details this program, instead finding it dangerous to allow the ACLU to sue based on an unauthorized leak. The government has actually been very selective about what Snowden-leaked programs they’ve declassified, almost certainly to protect even more problematic programs from legal challenge.
  • He claims Congress has renewed Section 215 7 times (including 2001, it was renewed it 5 times).
  • He claims there is no doubt the Intelligence and Judiciary Committees knew about the rulings underlying the program in spite of the fact that some rulings were not provided until after Section 215 was renewed; he admits that the limits on circulation of notice in 2011 was “problematic” but asserts the Executive met its statutory requirements (he doesn’t deal with the evidence in the record that the Executive Branch lied in briefings about the conduct of the dragnet).

There are also Pauley’s claims about the amount of data included — he says the government collects all phone metadata; they say NSA collects far less data. This is a more complicated issue which I’ll return to, though maybe not until the New Year.

But I’m most interested in the evidence Pauley points to to support his claim that the FISC (and Congress) conduct adequate oversight over this program. He points to John Bates’ limits to the government’s intentional collection of US person data via upstream collection rather than Reggie Walton’s limits to Section 215 abuses.

For example, in 20011, FISC Judge Bates engaged in a protracted iterative process with the Government–over the Government’s application for reauthorization of another FISA collection program. That led to a complete review of that program’s collection and querying methods.

He then immediately turns to Claire Eagan’s opinion reiterating that the government had found and dealt with abuses of the phone dragnet program.

In other words, for some bizarre reason he introduces a series of rulings pertaining to Section 702 — and not to Section 215 — to support his argument that the government can regulate this Section 215 collection adequately.

It’s particularly bizarre given that we have far more documents showing the iterative process that took place in 2009 pertaining directly to the phone dragnet. Why even mention the Bates rulings on upstream collection when there are so many Reggie Walton ones pertaining directly to Section 215?

I suspect this is because Pauley relies so heavily on the adequacy of the minimization procedures imposed by the FISC, as when he cites Claire Eagan’s problematic opinion to claim that without adequate minimization procedures, FISC would not approve Section 215 phone dragnet orders.

Without those minimization procedures, FISC would not issue any section 215 orders for bulk telephony metadata collection.

(Note, Pauley doesn’t note that the government has not met the terms of the Section 215 itself with regards to minimization procedures, which among other things would require an analysis of the NSA using a statute written for the FBI.)

The only way Pauley can say the limits he points to in his analysis — that NSA can only analyze 3 hops deep, that FBI only gets summaries of the queries, that every query got approved for RAS — is if he ignores that for the first 3 years of the program, all of these claims were false.

He uses similar analysis to dismiss concerns about the power of metadata.

But [ACLU's contention that the government could use metadata analysis to learn sensitive details about people] is at least three inflections from the Government’s bulk telephony metadata collection. First, without additional legal justification–subject to rigorous minimization procedures–the NSA cannot even query the telephony metadata database. Second, when it makes a query, it only learns the telephony metadata of the telephone numbers within three “hops” of the “seed.” Third, without resort to additional techniques, the Government does not know who any of the telephone numbers belong to.

These last assertions are all particularly flawed. Not only have these minimization procedures failed in the past, not only has the government been able to go four hops deep in the past (which could conceivably include all Americans in a query), not only is there abundant evidence — which I’ll lay out in a future post — that the government does know the identities of at least some of those whom it is chaining, but there are two ways the government accesses this data for which none of this is true: when “data integrity analysts” fiddle with the data to prepare it for querying, and when it is placed in the “corporate store” and analyzed further.

All the claims about minimization Pauley uses to deem this program legal have big big problems.

The NSA conducted a fraud on the FISC for 3 years (and still is, to the extent they claim the violations under the program arose from complexity rather than their insistence on adopting all the practices used under the illegal program for the FISC-authorized program). Yet Pauley points to the FISC to dismiss any Constitutional concerns with this program.

And to do that, he ignores the abundant evidence that all his claims have been — and may still be, in some cases — false.

Phone and Internet Associations Are Both Terror Group Membership and a Chance Encounter in a Dance Hall

Screen shot 2013-11-25 at 12.59.34 PM

The sole discussion of First Amendment considerations in this undated training (it’s probably between early 2008 and 2011) is one page with a list of protected activities.

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

D. Summary

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

CIA Aims to Hide Its SEKRIT Files at Second Circuit Again

Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.

The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.

On October 1, the Second Circuit heard the ACLU and NYT’s appeal of Colleen McMahon’s decision to dismiss their FOIA on documents relating to the Awlaki killing.

At the hearing, this exchange occurred.

JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?

MS. SWINGLE: I believe so, your Honor.

JUDGE NEWMAN: Is that a correct citation? Because I  couldn’t find it.

MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.

JUDGE NEWMAN: Do they have it there?

MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.

JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.

Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.

During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.

Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.

The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.

Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on  to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).

(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–

(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;

In which case, surprise surprise, this is about hiding CIA files.

But we already knew that.

And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.

One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.

JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.

MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.

JUDGE NEWMAN: That’s a secret.

MS. SWINGLE: It is.

Continue reading

Question: What Do David Barron and Jay Bybee Have in Common?

Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they've dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.

[snip]

Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.

[snip]

Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

NSA Caught Illegally Spying on Americans and Keith Alexander’s Answer Is a Group Hug

Kevin Gosztola had a superb post yesterday on a letter NSA Deputy Director John Inglis and DIRNSA Keith Alexander sent to family members of NSA employees to make them feel better about the dragnet. It’s a two page letter attempting to convince the family members of our SIGINT spies that their mission is noble and their actions within the scope of the law.

I’m particularly interested in the timing of it. As Kevin notes, the letter cites a typically obsequious post from Ben Wittes on how the Administration should have responded to WaPo’s disclosure of an internal review (just as one example, Ben claims to have read the report closely but somehow misses that 9 to 20% of violations consist of analysts breaking rules they know).

Inglis and Alexander write,

There are some in the media who are taking the time to actually study the leaked material, and they have drawn conclusions that are very different from those who are in it for a quick headline. One such legal scholar wrote that we should have made our case more forcefully by responding,

Shameful as it is that these documents were leaked, they actually should give the public great confidence both in NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA.

We couldn’t agree more.

I wonder if NSA would like to send family members my way, given that I have taken even more time than Ben studying these revelations and find he’s frequently engaging in spin?

Hmm. Probably not.

But what’s most fascinating by this citation is the timing.

Ben wrote that post on August 18, in the midst of a slew of disclosures by WaPo and the Guardian.

But Inglis and Alexander wrote this letter on September 13 — last Friday — at the end of a month when all of the major US-based disclosures (save that NSA has deliberately made all of us more vulnerable to hackers) have come from the government. In the month leading up to this letter, we learned the NSA:

At the end of 2008, the NSA had authorized contact chaining off of 27,090 identifiers and analysts could go four hops deep into the data, which effectively would allow them to create a relationship map of the entire country. And they used it not just to find “terrorists,” but also people they could coerce to inform on targets.

A system the Stasi would envy!

And FISA Court judges had deemed some of the first and third practices illegal. One threatened criminal referral and the other even shut down at least part the program for a period.

Continue reading

ACLU to Jim Comey: Welcome. Now Fix This.

Jim Comey has officially been in charge of the FBI for less than two weeks.

Today, in honor of Constitution Day, the ACLU just released a report showing how the FBI’s expanded mandate since 9/11 has led to Constitutional abuses.

Most of the details of the report have been reported here in depth. But the Big Data section includes some details I haven’t covered. It explains:

FBI collects Suspicious Activities Reports that duplicate — but lower the standard for — an existing database

Another major problem is that eGuardian effectively competes with another federal government SAR. The Intelligence Reform and Terrorism Prevention Act of 2004 established the Information Sharing Environment (ISE) to serve as the conduit for terrorism-related information sharing between state and local law enforcement and the federal government.114 A March 2013 Government Accountability Office report found that though the two programs share information between them, eGuardian uses a lower evidentiary threshold for inclusion of SARs, which creates risks and privacy problems.

The Government Accountability Office found that “many fusion centers have decided not to automatically share all of their ISE-SARs with eGuardian” because eGuardian doesn’t meet ISE standards.115 One fusion center said it would never provide SARs to eGuardian because of the fusion center’s privacy policy.116 The Government Accountability Office also found that the two systems “have overlapping goals and offer duplicative services.”117

FBI will soon have the equivalent of 20 pieces of intelligence on every American — and they share this broadly

An FBI budget request for fiscal year 2008 said the FBI had amassed databases containing 1.5 billion records, and two members of Congress described documents predicting the FBI would have 6 billion records by 2012, which they said would represent “20 separate ‘records’ for each man, woman and child in the United States.”119

[snip]

According to a 2012 Systems of Records Notice covering all FBI data warehouses, the information in these systems can be shared broadly, even with foreign entities and private companies, and for a multitude of law enforcement and non-law enforcement purposes.133

There’s far more in the report, chronicling the slow creep of abusive FBI techniques since 9/11.

Sadly, given that this has all been treated as legal, I doubt that Comey will do anything about it, even with ACLU’s demonstration that the dragnet has led FBI to miss real crimes.

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Emptywheel Twitterverse
bmaz @AdamSerwer There have to be a couple of Andrews on the worst list, no?
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bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Lastly, while we just have some fund diffs on this+Twitter truncated medium, appreciate discussion
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bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Wait, what happened to the tweet from girl who said I was just like the crazy militant NV cow guy?
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bmaz @seanpmcg Never there, but have heard about it. Saw them here couple of times long, long ago.
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bmaz @seanpmcg Other than that, just see what pops up.
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bmaz @seanpmcg Here is the special list for the National event today http://t.co/ZJ73JgW14l I'm looking at the Allman Bros Beacon Theater
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JimWhiteGNV RT @mattaikins: More polling stations failed to open on election day (1165) this year than in 2010 (1115).
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JimWhiteGNV RT @mattaikins: More violence, more complaints of fraud, more closed polling stations-basically the opposite of what every media outlet was…
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bmaz I am going to drive to National Record Store Day in a Prius #MaximumGranola
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bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 I don't have a problem w/prosecution; I have a problem w/cravenly selective prosecution.
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bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Morally or legally? When govt is out of control+refuses to adhere to its own law, then so be it.
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bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Reggie Walton's rulings indicate at least some of it did.
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