Dick Cheney

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Tortured Diplomacy

The AP has a story reporting (something that was public) that Colin Powell was not briefed on torture from the start, which meant in several cases Ambassadors to affected countries got briefed and instructed not to tell their superiors.

A Senate report on the CIA’s interrogation and detention practices after the 9/11 attacks concludes that the agency initially kept the secretary of state and some U.S. ambassadors in the dark about harsh techniques and secret prisons, according to a document circulating among White House staff.

The still-classified report also says some ambassadors who were informed about interrogations of al-Qaida detainees at so-called black sites in their countries were instructed not to tell their superiors at the State Department, the document says.

[snip]

A former senior CIA official said the secretary of state at the time, Colin Powell, eventually was informed about the program and sat in meetings in which harsh interrogation techniques were discussed. But Powell may not have been informed when the techniques were first used in 2002, the official said.

[snip]

The former CIA official said it would be standard practice for ambassadors informed about a covert operation to be instructed not to share it with others who did not have a “need to know,” as determined by the National Security Agency. Ambassadors in countries in which the CIA set up black sites to interrogate prisoners were usually told about it, said the official, who, like others interviewed for this story, would not be quoted by name because some of the information remains classified.

This narrative — developed as part of the initial Senate Intelligence Committee effort to study torture which ultimately became the torture report — suggests Colin Powell may not have briefed on torture techniques until September 16, 2003.

According to CIA records, pursuant to a request from the National Security
Adviser, the Director of Central Intelligence subsequently briefed the Secretary of
State and the Secretary of Defense on the CIA’s interrogation techniques on
September 16, 2003.

That seems very late — but he was apparently specifically not invited to a July 2003 meeting at which Principals reauthorized torture even in light of Khalid Sheikh Mohammed’s treatment. And these two comments from 2009 were awfully vague.

Remember, in January 2002, Powell and others at State tried very hard to get Bush to adhere to the Geneva Conventions they failed. Which is probably why he didn’t find out for a long time.

In any case, the implication is that Powell’s Ambassadors knew, but Powell did not.

I’ve just started looking at who the Ambassadors in question might be — especially with AP’s anonymous and probably lying CIA source claiming Ambassadors did get told (which the CIA often doesn’t do but which is a violation of protocol) but two stick out right away.

First, there’s Darryl Johnson, Ambassador to Thailand while Abu Zubaydah was being tortured. I don’t know anything about him, but note he presented his credentials on March 29, literally the day after Zubaydah was captured in Pakistan. Imagine asking your hosts to use their military base to torture people on on your second day officially on the job!

Even more interesting is Chris Hill, the lifetime diplomat who was Ambassador to Poland from 2000 through 2004, spanning the period when a number of detainees were being tortured. Hill went on to serve as Ambassador to South Korea immediately thereafter, then became Assistant Secretary of State for East Asia. In the latter two roles he played a key role in the 6-party talks with North Korea and had very significant disagreements with Dick Cheney. Hill then went on to serve as Ambassador to Iraq. I find it interesting to imagine how knowledge of Cheney’s torture might have made their principled disagreements even worse.

Of course, it’s possible AP’s source is lying and none of these men — or the other Ambassadors in the black site countries — really were briefed.

Update: Here’s a 2008 story (there were many similar ones at the time) that insinuates Powell was at the torture meetings. I think it’s meant to deceive.

PapaDick and BabyDick Try to Sustain the Terror Industry

PapaDick and BabyDick Cheney are at it again. They’ve got a piece in the Weekly Standard trying to renew the magic power of terrorterrorterror.

The intelligence claims they make are so batshit crazy they’re even being debunked in the WSJ (by a 9/11 Commission staffer).

But as with the other PapaDick/BabyDick interventions, I’m interested in certain of their detailed plans, which they hide after all their batshit intelligence lies.

The goal here, first of all, is to “get back on offense in the war on terror.”

As we work to defeat ISIS in Iraq and prevent the growth of a terrorist state in the heart of the Middle East, we must also move globally to get back on offense in the war on terror. This means, first, recognizing and admitting the size and scope of the threat we face. Al Qaeda is not “diminished,” nor is “the tide of war receding.” We remain at war, and law enforcement mechanisms will not keep us safe.

Part of that requires spending more than we already do on defense — which hints at one of the clients they’re working for here.

Second, we need to reverse the dramatic decline in defense spending we’ve seen in the last six years. A nation at war cannot hope to prevail if only 4 of its 42 Army brigades are combat ready. We need to make restoration of our military and a reversal of the disastrous defense budget cuts one of our top priorities.

We must occupy Afghanistan even if they don’t want us.

Third, we need to halt the drawdown of our troops in Afghanistan. The tragedy, terror, and chaos in Iraq will be repeated in Afghanistan if we abandon the fight there. Pulling out all U.S. troops without regard to conditions on the ground or the recommendations of our commanders will ensure a victory for America’s enemies.

As with PapaDick and BabyDick’s earlier recent eruptions, they’re serving our “friends and allies in the Middle East,” not necessary the American people.

Fourth, we need to reassure our friends and allies in the Middle East that America will not abandon them. We need to demonstrate through increased intelligence cooperation, military assistance, training, joint exercises, and economic support that we know they are on the front lines of the war on terror.

This apparently includes the military coup government in Egypt, and serving them requires even more arms.

We should immediately provide the Apache helicopters and other military support the government of Egypt needs to fight the al Qaeda insurgency in the Sinai.

And we must ignore all precedent on nukes just for Iran, because it threatens nuclear armed Israel.

Fifth, we should be clear that we recognize a nuclear-armed Iran is an existential threat to Israel and to other nations in the region, as well. We should refuse to accept any “deal” with the Iranians that allows them to continue to spin centrifuges and enrich uranium. In the cauldron of the Middle East today, accepting a false deal—as the Obama administration seems inclined to do—will only ensure Iran attains a nuclear weapon and spark a nuclear arms race across the region. The Iranians should know without a doubt that we will not allow that to happen, and that we will take military action if necessary to stop it.

We must renew our imperial push, even while screaming terrorterrorterror, because our puppet masters in the Middle East require it.

That, and more Apache helicopters.

Maybe It’s Time Liz and Dick Cheney Registered Under FARA?

In my Salon piece last week, I noted that in their attack on Obama, Liz and Dick Cheney were talking about interests, but made it clear they were really presenting the interests of “capitals from the Persian Gulf to Israel.”

And we should note whose interests Cheney represents.

Clearly, his temper tantrum serves, in part, to distract from his own culpability.

But note who else’s views Cheney cites? He claims he heard “a constant refrain in capitals from the Persian Gulf to Israel,” complaining about Obama’s actions. He describes a senior official in an Arab capital laying out ISIS’ aspirations on a map. He portrays those same figures in the Middle East demanding, “Why is he abandoning your friends?” “Why is he doing deals with your enemies?”

Even while Cheney parrots the interests of Middle Eastern leaders and conflates their interests with America’s, he scoffs at Obama’s (belated) efforts to address a far more immediate risk for America, climate change.

They’re back at it:

“I think the notion that somehow the Iranians have any interests in common with us is outrageous,” [Liz] Cheney said Tuesday on Rush Limbaugh’s radio show, according to a transcript. “The fact that we might be working with the Iranians again just gives our allies — you know — they’re apoplectic.”

This whole “Alliance for a Stronger America” schtick seems to do nothing else but lobby for the use of American service members and weapons to serve the interests of our “friends” — presumably Saudi Arabia and Israel — in the Middle East.

If they want to advocate for risking US lives and treasure to serve the Saudis, that’s their prerogative. But the law — the Foreign Agents Registration Act — requires that “ persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

It’s probably time for the Cheney’s to disclose who they’re working for here. No matter how prominently they feature the word “America” in their organization name, they appear to be working for other governments. Given that they’re acting like agents of a foreign power, they probably should admit that formally.

Dick Cheney’s Interests: Not Ours

In Salon today, I’ve joined the chorus of people objecting to PapaDick Cheney and his spawn Liz BabyDick’s op-ed claiming of Obama that, “Rarely has a U.S. president been so wrong about so much at the expense of so many.” 

In addition to reviewing some of the so wrong things Cheney said 12 years ago to get us into Iraq, I look closely at two things few others have, both suggesting certain things about whose interests Cheney claims to represent.

First, while claiming to speak for America’s interests in Iraq, he actually cites the leaders of Middle Eastern countries.

Clearly, his temper tantrum serves, in part, to distract from his own culpability.

But note who else’s views Cheney cites? He claims he heard “a constant refrain in capitals from the Persian Gulf to Israel,” complaining about Obama’s actions. He describes a senior official in an Arab capital laying out ISIS’ aspirations on a map. He portrays those same figures in the Middle East demanding, “Why is he abandoning your friends?” “Why is he doing deals with your enemies?”

And he does so even while he mocks the notion of actually doing something about climate change, a threat that (in the form of extreme weather events) more immediately threatens Americans today.

Even while Cheney parrots the interests of Middle Eastern leaders and conflates their interests with America’s, he scoffs at Obama’s (belated) efforts to address a far more immediate risk for America, climate change. “Iraq is at risk of falling to a radical Islamic terror group and Mr. Obama is talking climate change,” Cheney complains.

ISIS may be overrunning Iraqi cities, but extreme weather events are endangering cities in the United States and across the world. Much of the American West is struggling with extreme drought. Cheney, however, would have the president ignore this threat and instead prioritize the concerns he heard from his friends in the Middle East.

ISIS’ actions in Iraq are troubling — though it’s not clear that the US can do anything to fix it, certainly not now.

But the US has real problems here at home that threaten American lives and well-being. We really need to spend time working on our own governance before we decide to re-govern another country on the other side of the world.

Peter Baker, Meat Grinder for Bush

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In the NYT, Peter Baker presents his version of George Bush’s decision not to pardon Scooter Libby as the best pitch for his new book, Days of Fire, Bush and Cheney in the White House. Given that the piece is not at all newsworthy (and as I’ll show, Baker’s version of it is badly flawed), I suppose Baker thought that Bush’s refusal to fulfill Cheney’s request supports Baker’s contention that Bush, not Cheney, was the dominant player in the relationship.

One piece of evidence Baker provides to support that contention is this quote from Alan Simpson.

Cheney “never did anything in his time serving George W. that George W. didn’t either sanction or approve of,” said Alan Simpson, a former Republican senator from Wyoming and a close friend of Cheney’s.

If Baker believes Simpson’s claim, however, then his entire reading of Cheney’s involvement in leaking Valerie Plame’s identity is wrong (and not just because he quotes Liz Cheney pretending PapaDick had no role in the leak).

Baker provides dialogue suggesting that Bush and certain lawyers — Baker identifies them as White House Counsel Fred Fielding and his Deputy William Burck — debated whether Libby was protecting Cheney.

“All right,” the president said when the lawyers concluded their assessment. “So why do you think he did it? Do you think he was protecting the vice president?”

“I don’t think he was protecting the vice president,” Burck said.

Burck figured that Libby assumed his account would never be contradicted, because prosecutors could not force reporters to violate vows of confidentiality to their sources. “I think also that Libby was concerned,” Burck said. “Because he took to heart what you said back then: that you would fire anybody that you knew was involved in this. I just think he didn’t think it was worth falling on the sword.”

Bush did not seem convinced. “I think he still thinks he was protecting Cheney,” the president said. If that was the case, then Cheney was seeking forgiveness for the man who had sacrificed himself on his behalf.

Baker implies that Bush’s conclusion — that Libby believed he was protecting Cheney — convinced himself it would not be ethical to pardon Libby based on Cheney’s insistence. (Note, whatever you and I were paying Burck, it was far too much, because his logic as portrayed here is pathetically stupid.)

That would imply that Bush believed — Burck’s shitty counsel to the contrary — that Cheney played some role in the leak.

But Alan Simpson, who truly does know Cheney well, says Cheney never did anything without either Bush’s sanction or approval. Which would imply that whatever Cheney did to leak Plame’s identity, he did with the approval of Bush.

Which brings us to the other gaping hole in Baker’s account (aside from his complete misunderstanding of the evidence surrounding the leak itself). Baker uses the word “lawyers” 11 times in this excerpt, including (but not limited to) the following.

In the final days of his presidency, George W. Bush sat behind his desk in the Oval Office, chewing gum and staring into the distance as two White House lawyers briefed him on the possible last-minute pardon of I. Lewis Libby.

“Do you think he did it?” Bush asked.

“Yeah,” one of the lawyers said. “I think he did it.”

[snip]

At the time, Bush said publicly that he was not substituting his judgment for that of the jury. So how would he explain a change of mind just 18 months later? That was the argument Ed Gillespie, the president’s counselor, made to Cheney when he came to explain why he was advising Bush against a pardon. “On top of that, the lawyers are not making the case for it,” Gillespie told Cheney, referring to the White House attorneys reviewing the case for Bush. “We’ll be asked, ‘Did the lawyers recommend it?’ And if the lawyers didn’t, it’s going to be hard to justify for the president.”

[snip]

The following Monday, Bush had his final, definitive meeting with the White House lawyers, ending any possibility of reconsideration. There would be no pardon for Libby. [my emphasis]

Lawyers lawyers lawyers. Baker emphasizes how important the counsel of Nixon’s old lawyer and his apparently half-witted deputy were to Bush’s decision, and he implies, with his description of which lawyers Ed Gillespie referred to, that those lawyers were limited to official White House lawyers.

Nowhere — at least nowhere in this excerpt — does Baker mention that Bush also consulted with his own lawyer, Jim Sharp, as reported by Time 4 years ago.

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004. Sharp was known in Washington as one of the best lawyers nobody knew.

[snip]

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. “What’s the bottom line here? Did this guy lie or not?”

The lawyer, who had followed the case very closely, replied affirmatively.

Yet neither Time then nor Baker now considered the implications of Bush consulting with the lawyer who knew what questions he got asked when Pat Fitzgerald interviewed the President.

Those questions would have included whether — as Libby’s grand jury testimony recorded Cheney as having claimed — the President declassified the information, including Plame’s identity, Cheney ordered Libby to leak to Judy Miller. They also would have included why — as the note above shows — Cheney almost wrote that “the Pres” had ordered Libby to stick his neck in a meat grinder and rebut Joe Wilson, before he cross out the reference to the President and used the passive voice instead. They would have also included questions about Bush’s public comments about rebutting Wilson in meetings. (I laid out these details in this post.)

Peter Baker pretends that Bush had no personal knowledge of the leak or — more importantly — of Fitzgerald’s reasons for suspecting Cheney ordered the leak. He somehow forgets that Bush consulted his own lawyer, along with Fielding and Fielding’s lackey, either to interpret what Libby did or, more likely, what implications pardoning Libby would have for his own legal exposure.

Which is pretty bizarre. While including these details might make Bush look like a self-interested asshole, they are the only details that make sense if — as Baker suggests with the Simpson quote — whatever Cheney did that required Libby’s protection, he did with Bush’s sanction.

Could an Independent NSA Inspector General Have Prevented 3 Years of Violations?

Last week, two former Senate Intelligence Committee members proposed a fix for the NSA no one has yet floated: making NSA’s Inspector General independent. Doing so, they argue, would give the IG more leeway to direct her investigations of the NSA and provide Congress needed insight into NSA’s real activities.

But one important option has yet to be proposed: creating an independent inspector general’s office at the NSA, comparable to the office that was created within the CIA in 1989.

[snip]

Not only was the inspector general’s office viewed differently after the law was passed, but the office itself was different. It decided which of the CIA’s activities would be investigated, inspected or audited without waiting for direction or approval from agency management. Employees of the IG’s office no longer had to worry about the potential effect on their careers if their findings and conclusions were critical of the agency. They may not have always gotten everything right, but they were freer to call things as they saw them and did so, at times to the chagrin of CIA management.

Having an independent inspector general at the CIA produced other advantages for the oversight process: It gave the congressional intelligence committees a more reliable partner — an office that lawmakers could call upon to conduct investigations beyond their own capabilities — and they learned of problems they otherwise might not have come across.

The same dynamic is not possible at the NSA today because the agency’s inspector general is appointed by and works for the NSA director. For all practical purposes, he is a member of the director’s staff and does not report directly to the intelligence committees.

I’m particularly interested in this recommendation given a few data points from the transition period between the illegal phone dragnet to the Section 215 dragnet in 2006.

As the documents submitted in 2009 make clear, the dragnet remained largely if not entirely unchanged from what it was before 2006. The initial “bug” that “arose” in 2009 was really just a “feature” — an alert system on suspect phone identifiers — of the illegal program that never got shut down or properly disclosed to the FISA Court. Many of the subsequent “bugs” (such as access to the queried data for FBI and CIA) also seem to be “features” no one turned off to keep the program legal.

And the Inspector General (from 2002 to 2006, NSA defender Joel Brenner served in that role) knew about the features of the illegal program because he was belatedly read into the illegal program in 2002 and actually provided 3 suggestions to improve oversight of it (see pages 45-46). Among other things, Brenner instituted and attended monthly due diligence meetings.

As Keith Alexander’s February 2009 declaration to Reggie Walton reveals, as the program was transferring to FISC authorization in 2006, someone in the IG office suggested NSA tell the FISA Court how the alert system worked, but NSA chose not to follow that suggestion.

Agency records indicate that, in April 2006, when the Business Records Order was being proposed, NSA’s Office of Inspector General (“OIG”) suggested to SID personnel that the alert process be spelled out in any prospective Order for clarity but this suggestion was not adopted.

More interesting still is the role of a 2006 study submitted to the FISA Court (starting at 85). Continue reading

By “Secret Law” Did They Mean “Not Written Down”?

For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.

An Illegal Program Sanctioned with a Rubber Stamp Is Still That Same Illegal Program

Consider this anecdote from Barton Gellman’s story on the many violations of the NSA’s spying programs.

In one instance, the NSA decided that it need not report the unintended surveillance of Americans. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a programming error confused the U.S. area code 202 for 20, the international dialing code for Egypt, according to a “quality assurance” review that was not distributed to the NSA’s oversight staff.

[snip]

In the case of the collection effort that confused calls placed from Washington with those placed from Egypt, it is unclear what the NSA meant by a “large number” of intercepted calls. A spokesman declined to discuss the matter.

The NSA has different reporting requirements for each branch of government and each of its legal authorities. The “202” collection was deemed irrelevant to any of them. “The issue pertained to Metadata ONLY so there were no defects to report,” according to the author of the secret memo from March 2013.

Viewed against the background of the documents on the 2009 Section 215 dragnet problems, the anecdote tells us several things:

  • The phone metadata for Egypt and for DC were both accessible from the same user interface until at least 2008
  • US phone metadata was accessible by area code, not just by single phone identifier
  • Because it internally reported this incident, NSA was well aware of that fact
  • Among all the violations reported to Reggie Walton in 2009 (see my rough summary), it did not include this one (indeed, it appears NSA has never reported it to FISC, which may be why in response to this story Walton went on the record to complain that the FISA Court relies on the NSA’s self-disclosure)

That is, this violation undermines many of the stories the NSA told Walton during the 10 month period when they were purportedly coming clean on major problems with the dragnet, starting with the claim that these problems were a surprise not identified until after he wrote the first substantive opinion – 31 months after FISC first gave it sanction – authorizing the program. (I consider the 2006 opinion authorizing the dragnet a shockingly thin document, and Walton seems to have felt the need to lay out a more substantive case for the legality of it in 2008.)

But something else undermined that story: the pretense that the entire program arose from virgin birth in 2006.

Indeed, we know (though the government hasn’t actually admitted it, even though Ron Wyden has asked them to) that the Section 215 dragnet is actually just a part of the Dick Cheney’s illegal surveillance program placed under court sanction. Here’s how the NSA’s own draft IG Report (which was completed right smack dab in the middle of the discussions between Walton and the NSA about these violations) describes some aspects of the program, including the alert program that was part of the initial “discovery” of the violations.

(TS//SII/OC/NF) Analysis. NSA used a variety of tools to conduct metadata analysis and view the results. NSA’s primary tool for conducting metadata analysis, for PSP and traditional SIGINT collection, was MAINWAY. MAINWAY was used for storage, contact chaining, and for analyzing large volumes of global communications metadata. At the beginning of the PSP, only the “SIGINT Navigator” tool was available to view MAINWAY output. Over time, new tools and new processes, such as automated chaining alerting, were created to improve analysts’ efficiency. To obtain the most complete results, analysts used data collected under PSP and non-PSP authorities. Typically, they analyzed networks with two degrees of separation (two hops) from the target. Analysts determined if resulting information was reportable.

(TS//SII/OC/NF) In addition, an automated chaining alert process was created to alert analysts of new potentially reportable selectors. Previously approved selectors were compared to incoming MAINWAY data authorized by the PSP, E.O. 12333, or the FISC. Alerts of direct contacts with approved selectors were reported to NSA analysts for further analysis and potential reporting to FBI and CIA.

And here’s where the IG Report admits this all became the Section 215 dragnet.

(TS//SV/NF) According to NSA General Counsel Vito Potenza, the decision to transition telephony metadata to the Business Records Order was driven by a private sector company. After the New York Times article was published in December 2005, Mr. Potenza stated that one of the PSP providers expressed concern about providing telephony metadata to NSA under Presidential Authority without being compelled. Although OLC’s May 2004 opinion states that NSA collection of telephony metadata as business records under the Authorization was legally supportable, the provider preferred to be compelled to do so by a court order. 11

(TS//SII/NF) As with the PR/TT Order, DoJ and NSA collaboratively designed the application, prepared declarations, and responded to questions from court advisers. Their previous experience in drafting the PR/TT Order made this process more efficient.

Continue reading

FISC Opinions as Legal Cover

WSJ has a story on how the FISA Court came to render the phrase “related to” — which has been used for 7 years to collect the phone records of almost all Americans — entirely meaningless.

The history of the word “relevant” is key to understanding that passage. The Supreme Court in 1991 said things are “relevant” if there is a “reasonable possibility” that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn’t meet the relevance standard because significant portions—innocent people’s information—wouldn’t be pertinent.

But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court’s rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means “relevant” can have a broader meaning for those investigations, say people familiar with the rulings.

The story specifically says FISC issued the decision authorizing the use of Section 215 to collect phone records in May 2006, in the wake of the exposure of Dick Cheney’s illegal dragnet (and after Congress had included the “relevant to” language in the PATRIOT Act reauthorization).

But in May 2006, the secret court agreed that, even with the addition of the word “relevant,” bulk phone records could also be collected under the law.

The legal interpretations required to make this change were “aggressive,” says Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations. Still, considering that the program previously had less congressional or court oversight, many lawmakers saw this as a step forward, he says.

“It wasn’t seen that we’re pushing the boundaries of surveillance law here,” Mr. Edgar says. “It was the very opposite. You’re starting from a huge amount of unilateral surveillance and putting it on a much sounder legal basis.”

Indeed, the way Edgar justifies this crazy distortion of the term “relevant” is by pointing to Cheney’s illegal program, as if that made it right.

But WSJ also describes this May 2006 decision as one in a series of decisions starting in “mid-2000s.”

In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The timing is significant. Remember, FBI hadn’t used Section 215 in the post-9/11 era until the period Jack Goldsmith and Jim Comey started challenging the illegal program’s legality; FBI got their first Section 215 order approved — MIRACLES! — on May 21, 2004. FBI at least temporarily sidestepped DOJ’s Office of Intelligence Policy and Review to employ this standard.

On March 23, 2004 at noon, less than two weeks after the dramatic hospital confrontation and threats to quit reportedly got the Administration to agree to stop data mining Americans, FBI Director Robert Mueller had a meeting with Dick Cheney, at the Vice President’s request, in the Vice President’s office. In his notes, Mueller doesn’t describe what the VIce President wanted, nor am I aware that it has even been reported in the press.

The next day, the Chief Division Counsel of some Division of the FBI wrote a memo to the FBI General Counsel noting that FBI was using a “new standard” with Section 215 of the PATRIOT Act and indicating that a “recent decision” had been made to bypass the review of the Office of Intelligence Policy and Review on Section 215 applications.

In part, the apparent decision to bypass OIPR, which had rejected the premise of the previous Section 215 orders FBI had submitted in the past, reflected no more than a concerted effort on FBI’s part to make sure it could start using all the PATRIOT authorities it had been granted in 2001 in anticipation of renewal discussions that would take place the following year. Yet the timing of this change is particularly curious, given that we now know Section 215 has been used to collect data that could be used for data mining Americans, precisely the problem that had caused the hospital confrontation 12 days earlier.

At the very least, however, it shows that sometime around the same time as Jim Comey and others at DOJ tried to stop the data mining of Americans under NSA’s illegal program, FBI claimed to have eliminated one review step for Section 215 orders and changed the standard used for them. That reference notwithstanding, DOJ Inspector General at least reported that OIPR continued to have a role. (Note, the office that got cut out of the process, OIPR, is where one of the key whistleblowers on the illegal program, Thomas Tamm worked, though I have asked him if he knew whether they used Section 215 to accomplish the same program and he didn’t know anything about it.)

On May 21, 2004, just as the the confrontation was settling down, FBI got its first Section 215 order approved. MIRACLES! the memo subject line read. “We got our first business record order signed today. It only took two and a half years.”

And consider the other odd thing about all this. There is a part of FISA specifically designed to return phone records, the Pen Register/Trap & Trace procedure (the one used starting in 2004 for Internet metadata). So why didn’t they use that?

In any case, this increasingly appears to be the end result of an effort on the part of FISC to remain relevant by distorting law in secret, in the hopes that an unconstitutional expansion of the law in secret was better than actually stopping an illegal program conducted by bypassing the court altogether.

The reason the law is so twisted is because no one wanted to — or believed they had the ability to –rein in gross violations of law conducted by Dick Cheney.

The 2009 Draft NSA IG Report Makes No Mention of One Illegal Practice

The 2009 Draft NSA IG Report released by the Guardian last week — and related reporting from Barton Gellman — seem to clarify and confirm what I’ve long maintained (12/19/057/29/07; 7/30/07): that one part of the illegal wiretap program that Jack Goldsmith and Jim Comey found “illegal” in 2004 was data-mining of Americans.

Eight days later on 19 March 2004, the President rescinded the authority to collect bulk Internet metadata and gave NSA one week to stop collection and block access to previously collected bulk Internet metadata. NSA did so on 26 March 2004. To close the resulting collection gap, DoJ and NSA immediately began efforts to recreate this authority in what became the PR/TT order.

Mind you, this bulk collection resumed after Colleen Kollar-Kotelly signed an order permitting NSA to collect the same data under a Pen Register/Trap & Trace order on July 14, 2004.

The FISC signed the first PR/TT order on 14 July 2004. ALthough NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP, except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data.

Indeed, we know the program was expanded again in 2007, to get 2 degrees of separation deep into US person Internet data. The Obama Administration claims it ended this in 2011, though there are also indications it simply got moved under a new shell.

Mystery solved, Scoob!

Not so fast.

It appears the bulk Internet metadata collection and mining is just one of two practices that Goldsmith and Comey forced Bush to at least temporarily halt in 2004. But the second one is not mentioned at all in the NSA IG Report.

I first noted that Bush made two modifications to the program in this post, where I noted that 6 pages (11-17) of Jack Goldsmith’s May 6, 2004 OLC opinion on the program described plural modifications made in March and one other month in 2004 (I correctly surmised that they had actually shifted parts of the program under parts of the PATRIOT Act, and that they had narrowed the scope somewhat, though over-optimistically didn’t realize that still included warrantless collection of known domestic content).

But there’s actually a far better authority than Goldsmith’s heavily redacted opinion that confirms Bush made two modifications to the program in this period.

Dick Cheney.

When his office disclosed to Patrick Leahy in 2007 what documents it had regarding authorizations for the illegal wiretap program, it listed two modifications to the program: the one on March 19 described in detail in the NSA IG Report, plus one on April 2.

[Cheney Counsel Shannen] Coffin’s letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year.

But there’s no hint of a second modification in the NSA IG Report.

That could mean several things. It could mean the April 2 modification didn’t involve the NSA at all (and so might appear in a one of the other Agency IG Reports at the time — say, DNI — or might have been completed by an Agency, like some other part of DOD, that didn’t complete an IG Report). It could mean that part of the program was eliminated entirely on April 2, 2004. Or it could mean that in an effort to downplay illegality of the program, the IG simply didn’t want to talk about the worst prior practice eliminated in the wake of the hospital confrontation.

Goldsmith’s opinion does seem to indicate, however, that the modification pertained to an issue similar to the bulk metadata collection. He introduces that section, describing both modifications, by saying “it is necessary to understand some background concerning how the NSA accomplishes the collection activity authorized under” the program.

That may still pertain to the kind of data mining they were doing with the Internet metadata. After all, the fix of moving Internet metadata collection under the PR/TT order only eliminated the legal problem that the telecoms were basically permitting the government to steal Microsoft and Yahoo Internet content from their equipment. There still may have been a legal problem with the kind of data mining they were doing (perhaps arising out of Congress’ efforts in that year’s NDAA to prohibit funding for Total Information Awareness).

Whatever it is, one thing is clear. Even with the release of the unredacted Draft NSA IG Report, we still aren’t seeing all the details on what made the program so legally problematic.

Maybe it’s something the Senate Judiciary Committee might ask Jim Comey during his FBI Director confirmation hearing?

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Emptywheel Twitterverse
JimWhiteGNV RT @DCreDC: "@DemocracyNow: Have you been called by anyone in Congress to testify...? POSTOL: Of course not. Congress is not interested in …
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JimWhiteGNV I'm shocked, shocked that the torture report has significant redactions. #MostTranparentAdministrationMyAss
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emptywheel @1971Film Had a ticket but didn't make it--so bummed!
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emptywheel @Krhawkins5 So maybe they'll ruin your October vacation. You got one of those scheduled?
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emptywheel @Krhawkins5 Normally I'd say you'd be absolutely right. But CIA is going to stall on explaining its overredaction longer, don't you think?
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emptywheel And @Krhawkins5 wins the predicted-the-utterly-predictable about CIA's overcensorship sweepstakes! Your prize is... dysfunctional democracy!
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