A few weeks back, I pointed to 9th Circuit Chief Judge Alex Kozinski’s criticism of John Bates’ presumption to speak for the judiciary in his August 5 letter complaining about some aspects of USA Freedom Act. Kozinski was pretty obviously pissed.
But compared to the op-ed from retired District Court Judge Nancy Gertner – who effectively scolds Bates, as the Administrative staff, speaking out of turn — Kozinski was reserved.
[W]hatever the merits of Bates’ concerns—and other judges have dissented from it—he most assuredly does not speak for the Third Branch.
Bates has been appointed by Chief Justice John Roberts to serve as director of the Administrative Office of the U.S. Courts, the body that administers the federal courts. It was created in 1939 to take the administration of the judiciary out of the Department of Justice. Its principal tasks were data collection and the creation of budgets and, while its duties have grown over the years, they remain administrative (dealing with such things as court reporters, interpreters, judicial pay, maintenance of judicial buildings, staffing etc.).
When members of Congress solicit the “judiciary’s” opinion they may write to the office’s director, but he has no authority to make policy for the federal judiciary. It is the Judicial Conference of the United States Courts, to which the AO director is only the “secretary,” that has that responsibility.
I’m very supportive of Gertner’s defense of judicial independence and her concern about the operation of the FISA Court.
But her critique goes off the rails when she points to DOJ’s purported support of USA Freedom Act as a better indication of the Executive’s views than Bates’ comments.
Moreover, a great deal of Bates’ letter focuses on the Senate proposals’ impact on the executive branch and the intelligence community. The Senate bill would burden the executive with more work and even delay the FISA court’s proceedings, he suggests. Worse yet, the executive may be reluctant to share information with an independent advocate—a troubling claim.
Bates’ concerns are belied by the support voiced by the Department of Justice and the president for the Senate proposal. Surely, the executive branch understands its own needs better than does Bates. Surely, the executive branch has confidence in the procedures that the FISA court would have in place for dealing with classified information, just as the courts that have dealt with other national security issues have had.
And surely, the executive would abide by what the law requires, notwithstanding Bates’ predictions about its “reluctance” to share information with a special advocate.
DOJ’s “support” of the bill was expressed when Eric Holder co-signed a letter (which Gertner tellingly doesn’t mention, much less link) from James Clapper which, when read with attention, clearly indicated the Executive would interpret the bill to be fairly permissive on most of the issues on which the Senate bill would otherwise improve on the House one. Holder’s “support” of the bill strongly indicates that DOJ, with ODNI, plans to use the classification and privilege “protections” in the bill to refuse to share information with the special advocate.
And that’s precisely the part of the letter where Holder and Clapper invoke Bates.
Polls taken almost exactly one year apart show a remarkable reversal in US opinion regarding the prospect of air strikes on Syria. Last year, in a poll conducted September 6-8, (pdf) there were a number of questions regarding action in Syria. By a margin of 59% to 39%, Americans overwhelmingly said they thought Congress should not pass the then pending resolution authorizing “military action for 60 to 90 days” that also banned use of US troops in a combat role. Further, 55% of those polled stated that even if Congress passed the resolution, they opposed US air strikes in Syria while only 43% favored them. In the hypothetical of no Congressional authorization, opposition to the air strikes rose to 71% with only 27% favoring them. Just one year later, those numbers have reversed. In a poll conducted September 4-7, 65% of Americans now say they support expanding US air strikes against the Sunni insurgents into Syria, while only 28% oppose them. Checking the crosstabs, support for the strikes jumps to 74% for Republicans but still is 60% for Democrats.
So why is this year’s Drum-Up-War week working, when last year’s failed?
Despite the heinous nature of last year’s sarin attack, it seems to me that most Americans did a good job of recognizing that what is underway in Syria is a civil war in which the US has no vital interest other than humanitarian concern for widespread death and displacement of citizens. Having failed to paint Bashar al-Assad as an evil-doer on the level of Saddam Hussein (or perhaps after Americans rejected such an obvious campaign to do so) Obama and his fellow war hawks now consider ISIS “the focus of evil in the modern world“.
The beheading of US journalists in Syria got huge play in the press. And yet, if we drill down a bit, the rate of journalists being killed in Syria is going down from its peak in 2012.
Somehow, Obama’s war gang has managed to convince ordinary Americans that ISIS represents a real threat to the US. That same poll that favors attacks on ISIS in Syria found that a staggering 91% of Americans find ISIS to be a serious threat to the US (59% said “very serious” and 31% said “somewhat serious”). Sadly, there is no reality behind this fear on the part of Americans. Even Time, in doing its best to support the hysteria, winds up undercutting the concept in a story today. In a piece creatively titled “Understanding the ISIS Threat to Americans at Home“, we learn:
On the one hand, Attorney General Eric Holder has said western fighters joining ISIS and returning home radicalized are the national security danger he worries about most. “We are seeing, I would say, an alarming rise in the number of American and European Union nationals who have been going to Syria to help extremist groups,” Holder told TIME last month. “This represents a grave threat to our security,” he said.
But in a thorough presentation on Sept. 3 at the Brookings Institution, outgoing director of the National Counterterrorism Center, Matthew Olsen, presented a less scary picture. ISIS has no cells in the U.S., Olsen said, “full stop.” Further, Olsen said, “we have no credible information” that the group “is planning to attack the U.S.” ISIS, Olsen said “is not al Qaeda pre-9/11.”
At most, the article concludes, quoting Obama in his “exclusive” with Chuck Todd, he needed “to launch air strikes to ensure that towns like Erbil were not overrun, critical infrastructure, like the Mosul Dam was protected, and that we were able to engage in key humanitarian assistance programs that have saved thousands of lives.”
The links Holder is hyping about ISIS and AQAP simply do not exist:
Holder says the danger comes from the combination of westerners joining ISIS and the expert bomb-makers working for the al Qaeda affiliate in Yemen, Al Qaeda in the Arabian Peninsula (AQAP). It is not clear what if any evidence exists of such collaboration yet. On the one hand, AQAP has issued statements in support of ISIS, and both groups are active in Syria and Iraq; on the other, al Qaeda and ISIS split in the last year after a debate over tactics and territory.
Several senior administration officials tell TIME they have seen no evidence of direct contact between individual members of AQAP and ISIS.
In the end, the article concludes, Obama’s war team has deduced that we must attack ISIS because at some point in the future, they will turn their sights on us. Never mind that in this case, attacking ISIS in Syria winds up helping Assad, whom we wanted to attack last year:
Jane Harman, the president of the Woodrow Wilson Center, said that while the Assad government was a major topic of discussion, she and other participants told Mr. Obama that he could order military action in Syria without fear of helping Mr. Assad, since ISIS was occupying ungoverned territory that his forces were unlikely to reconquer.
I guess that Harman and Obama know that Assad won’t be able to reconquer those once ISIS is gone because of the bang-up job we will do training and equipping our famous “moderate” rebels, but hey, what could go wrong on any of this?
In the end, though, the apparent support for this version of strikes on Syria seems to me to have come about because of the shift in focus on the “enemy” from a president oppressing the citizens of his country to an international terror group that we must fear and that represents true evil. As far as the average American is concerned, meddling in another country’s civil war is out of bounds, but when it comes to protecting the homeland against evil-doers, anything goes.
And it doesn’t even need Congressional approval.
In this post I pointed out what Clapper’s letter really said. In this one, I described why it is so inexcusable that Clapper emphasized FBI’s exemption from reporting requirements (I will have a follow-up soon about why that earlier post just scratches the surface). And this post lays out some — but not all — the ways Clapper’s letter said he would gut the Advocate provision.
But I think there’s a far better way of understanding Clapper’s letter. He didn’t endorse Leahy’s USAF, S 2685. He endorsed USA Freedumber, HR 3361.
Below the rule I’ve put a summary of changes from USA Freedumber to Leahy USA Freedom, HR 3361 to S 2685. I did it a very long time ago, and there are things I’d emphasize differently now, but it will have to do for now (it may also be helpful to review this summary of how USA Freedumber made USA Freedumb worse). Basically, S 2685 improved on HR 3361 by,
This closely matches what the coalition that signed onto S 2685 laid out as the improvements from HR 3361 to S 2685.
[T]he new version of the bill:
- Strengthens and clarifies the ban on “bulk” collection of records, including by tightening definitions to ensure that the government can’t collect records for everyone in a particular geographic area or using a particular communication service, and by adding new post-collection minimization procedures;
- Allows much more detailed transparency reporting by companies—and requires much more detailed transparency reporting by the government—about the NSA’s surveillance activities; and
- Provides stronger reforms to the secret Foreign Intelligence Surveillance Court’s processes, by creating new Special Advocates whose duty is to advocate to the court in favor of privacy and civil liberties, and by strengthening requirements that the government release redacted copies or summaries of the court’s significant decisions.
Though as I explained here, there is no public evidence the minimization procedures required by the bill are even as stringent as what the FISC currently imposes on most orders, so the minimization procedures of S 2685 might – like the emergency procedures do — actually weaken the status quo.
Here are three of the key passages from Clapper’s letter that I believe would address the intent of the bill as written.
In other words, the limiting language in Clapper’s letter very clearly maps the changes from HR 3361 to S 2685.
He clearly says he doesn’t have to follow the new limits on specific selection terms. He signals he will use his authority to make classification and privilege determinations to keep information away from the amicus (or retain ex parte procedures via some other means). And by endorsing John Bates’ letter, he revealed his intention to take out requirements that the amicus advocate in favor of privacy and civil liberties. In addition — this is the part of Bates’ letter I missed in my previous analysis — he thereby endorsed Bates’ recommendation to “delet[e] this provision [specifying that the Court must release at least a summary], leaving in place the provision that significant FISA court decision would continue to be released, whenever feasible, in redacted form.”
Plus, as I mentioned, his use of “metadata” rather than “Call Detail Record” suggests he may play with that laudable limit in the bill as well.
I think Clapper’s read on the exemption for FBI is totally a fair reading of the bill; I just happen to think the Senate is doing a great deal of affirmative damage by accepting it. (Again, I hope to explain more why that is the case in the next day or so.)
Voila! Clapper’s “endorsement” of the bill managed to carve out almost all the improvements from HR 3361 to S 2685 (as well as emphasize Congress’ ratification for the FBI exemption, the huge reservation on the one improvement he left untouched). The only other improvement Clapper left in place was the limit on collection of prospective phone record to counterterrorism purposes.
That’s it. If Clapper’s views hold sway, that’s all this bill is: USA Freedumber with the retention of the status quo counterterrorism application for CDR collection.
As the press is reporting right now, James “Too Cute by Half” Clapper and Eric Holder have written Patrick Leahy a letter endorsing his version of the dragnet reform bill. Reports claim this shows that Clapper supports reform.
Consider me unimpressed.
To understand why, it helps to understand what this letter was once supposed to do. According to a Senate source who is skeptical this reform does enough, it was supposed to provide language that would endorse civil libertarians’ understanding of key terms of the bill. I’m not sure if the letter is still supposed to do that work — if it is not, that is a story unto itself. But the language in this letter doesn’t make any commitments on the key points of concern.
As an initial matter, I was told this letter would include language making it clear that the “connection chaining” language I’ve been so concerned about would limit contact chaining to actual calls made. The letter doesn’t address connection chaining at all. Huh. How about that?
Here’s what Clapper’s letter says about the prospective call detail record (CDR) collection:
The bill also provides a mechanism to obtain telephone metadata records in order to identify potential contacts of suspected terrorists inside the United States. The Intelligence Community believes that, based on communications providers’ existing practices in retaining metadata, the bill will retain the essential operational capabilities of the existing bulk telephone metadata program while eliminating bulk collection.
It’s good news the IC is not asking for data retention requirements — but you ought to ask why, given that the most important provider, Verizon, has told the Senate Intelligence Committee that it only keeps billing records — not CDRs – for 18 months.
Note, however, that Clapper doesn’t use CDR language here — he uses “metadata,” which is actually broader — potentially far broader — than CDRs as defined by the bill. We know, for example, that the IC considers location data metadata — and James Cole told Mark Warner they might ask for hybrid orders to get location data. We know from the ICREACH documents that the IC admits it uses a different definition of metadata than the FISA Court does (the IC’s definition of metadata not only includes content, but also substantive information about people). We know that providers store customer things-that-count-as-metadata on their clouds, indefinitely. Adopting metadata here, in short, may back off the otherwise limited definition of CDR, which is one of the bills laudable limiting factors.
The letter’s claim to end bulk collection does nothing to reflect that the IC’s definition of bulk — anything without a discriminator — has nothing to do with the common English definition of it; it certainly doesn’t promise to end the English language definition of bulk. Moreover, it only promises to limit bulk collection to the “greatest extent practicable.”
[T]he bill permits collection under Section 215 of the USA PATRIOT Act using a specific selection term that narrowly limits the scope of the tangible things sought to the greatest extent reasonably practicable, consistent with the purposes for seeking the tangible things. Recognizing that the terms enumerated in the statute may not always meet operational needs, the bill permits the use of other terms, provided there are court-approved minimization procedures that prohibit the dissemination and require the destruction within a reasonable period of time of any information that has not been determined to satisfy certain specific requirements.
That “reasonably practicable” language is a direct quote from the bill. It adds nothing, and given that Bob Litt refuses to limit FBI back door searches because it’s not practicable, what the IC means by practicable could very easily encompass gross privacy violations — ones that have already been approved by FISC! And remember–the IC can use corporate persons as selection terms.
Then the letter all but admits it will use selection terms that violate this principle, but points to the minimization procedures required by the law to rationalize that. As I’ve pointed out, there’s no reason to believe the minimization procedures will be any more stringent than what the FISC currently requires — and there’s at least some reason to suspect they might be weaker than current minimization procedures. (And remember, the retention requirements for the CDR authority almost certainly broadens permitted dissemination to foreign intelligence purpose, which might lead to a similar broadening of it elsewhere under the authority.)
The transparency paragraph includes this language.
the transparency provisions in this bill … among other things,  recognize the technical limitations on our ability to report certain types of information.
This is James Clapper saying quite clearly to anyone willing to listen that he sees this bill — which explicitly carves out FBI back door searches from any transparency reporting — as Congressional endorsement of the idea that we should never demand the number of FBI back door searches. This language, by itself, ought to make the bill toxic.
Congratulations NGOs. You’re backing the idea that the FBI should be able to use 702 and 12333 collected information in criminal contexts with zero oversight or accountability.
Finally, Clapper’s letter makes it clear that Leahy’s bill will do nothing to stop ex parte communication between the Executive and FISC. And he even points to John Bates’ ridiculous letter (huh, now we have a better sense of who put Bates up to that!) to warn he’ll carve out even more.
We believe that the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government. We are also aware of the concerns that the Administrative Offices of the U.S. Courts expressed in a recent letter, and we look forward to working with you and your colleagues to address these concerns.
Especially after we learned Bates single-handedly rewrote PATRIOT last year to make it okay to spy on Americans for their protected speech, we should do nothing to accommodate Bates’ wishes, especially since he didn’t speak with the authority of his position. The FISC, as Bates envisions it, doesn’t resemble a real court at all.
In short, there’s one piece of good news in this letter — that the IC won’t ask for data retention requirements — and a whole lot of reason to be even more skeptical of the bill.
Eric Holder just published an op-ed in the St. Louis Post Dispatch, apparently aiming to generate confidence in DOJ’s investigation into Darren Wilson’s killing of Mike Brown.
It starts with 3 sentences describing Brown’s killing — with no mention of Wilson, or even that a cop killed Brown.
Since the Aug. 9 shooting death of Michael Brown, the nation and the world have witnessed the unrest that has gripped Ferguson, Mo. At the core of these demonstrations is a demand for answers about the circumstances of this young man’s death and a broader concern about the state of our criminal justice system.
At a time when so much may seem uncertain, the people of Ferguson can have confidence that the Justice Department intends to learn — in a fair and thorough manner — exactly what happened.
A disembodied shooting killed Brown in this telling; violence did not.
Holder then spends several paragraphs discussing both the investigation itself, as well as the actions of the Civil Rights Division before he turns – in the course of one paragraph — to the protests. Here, violence is described as violence.
We understand the need for an independent investigation, and we hope that the independence and thoroughness of our investigation will bring some measure of calm to the tensions in Ferguson. In order to begin the healing process, however, we must first see an end to the acts of violence in the streets of Ferguson. Although these acts have been committed by a very small minority — and, in many cases, by individuals from outside Ferguson — they seriously undermine, rather than advance, the cause of justice. And they interrupt the deeper conversation that the legitimate demonstrators are trying to advance.
The implication, of course, is that the violence comes exclusively from that “very small minority,” not the cops shooting rubber bullets from their tanks.
I find the next paragraph truly remarkable.
The Justice Department will defend the right of protesters to peacefully demonstrate and for the media to cover a story that must be told. But violence cannot be condoned. I urge the citizens of Ferguson who have been peacefully exercising their First Amendment rights to join with law enforcement in condemning the actions of looters, vandals and others seeking to inflame tensions and sow discord.
The Justice Department — the Agency Eric Holder leads, the 40 FBI Agents and Civil Rights prosecutors Holder described — has done nothing visible thus far to defend the First Amendment.
And then, Holder says, “violence cannot be condoned.” A bizarre passive sentence with no agent. By whom? Who cannot condone violence?!?!
And he uses it to urge “the citizens of Ferguson who have been peacefully exercising their First Amendment rights” — many of whom have been arrested, bullied, tear gassed, some of whom have formed chains to protect businesses — to “join with law enforcement,” the same law enforcement that has been bullying them. Holder asks these citizens — who presumably are the ones he says cannot condone violence — to join the cops who have been engaging in violence to condemn others who have also been engaging in violence. Those “others” inflame tensions and sow discord. The cops don’t, according to this telling.
It takes a good paragraph and a half before Holder says the cops must restore trust. Only unlike the “citizens” of Ferguson, Holder does not urge the cops directly to do … anything. He just describes what should happen, he doesn’t command it to happen.
At the same time, good law enforcement requires forging bonds of trust between the police and the public. This trust is all-important, but it is also fragile. It requires that force be used in appropriate ways. Enforcement priorities and arrest patterns must not lead to disparate treatment under the law, even if such treatment is unintended. And police forces should reflect the diversity of the communities they serve.
Note what else happens? That violence — unmentioned in Mike Brown’s actual shooting, but explicitly described when “those others” did it — here becomes “force.” Something distinct from the violence of looters.
Darren Wilson’s shooting of Mike Brown? Not described as violence — not even described as the act of a known man. The looters’ looting? They’re engaged in “violence.” And finally, the cops, whom Holder doesn’t dare urge to tone things down? They are exercising “force,” not “violence.”
I get there are legal reasons why he did this — notably, this permits him to endorse findings that Wilson used “force” out of fear for his own safety! But the grammar and vocabulary of this op-ed insists on the state’s monopoly on violence that it has been abusing for 10 days.
If you didn’t already need proof that the FISA Court needs to consult technical advisors before they permit the government to collect all of Americans’ metadata, consider this lesson DOJ offered as part of its initial application for the Internet dragnet (see page 16).
Of course, you’re prohibited from seeing the better part of that lesson — the fictional example of metadata they offered — because James Clapper has deemed it classified.
Funny. Eric Holder recently claimed in a Congressional hearing that if something’s not true it’s not classified. I guess the fictions they tell FISC judges are another matter.
Eric Holder has attracted a bit of attention for lecturing the Europeans that they should engage in
entrapment stings like our FBI, specifically to prevent Europeans from going to fight in Syria.
The second part of our comprehensive strategy looks to ensure that we have in place law enforcement investigative tools and techniques that are both effective and protective of individual rights and the rule of law. In this regard, we have found undercover operations – which the Federal Bureau of Investigation pioneered in fighting transnational organized crime – to be essential in fighting terrorism as well. In the United States, the FBI has already conducted undercover operations that have identified individuals with intentions to travel to Syria. These operations are conducted with extraordinary care and precision, ensuring that law enforcement officials are accountable for the steps they take – and that suspects are neither entrapped nor denied legal protections. Here, too, the Global Counterterrorism Forum’s Rabat Memorandum calls for such techniques to be applied in countries around the world: one of the “good practices” it advocates is that countries “Provide a Legal Framework and Practical Measures for Undercover Investigations of Terrorist Suspects or Organizations
Even more noteworthy, in my opinion, is his claim that the fourth part of our strategy to prevent Syria from becoming a training ground for terrorists is preventing radicalization in the first place.
The fourth and final element of our strategy is founded on the notion that strong laws, effective investigative tools, and robust information-sharing must be matched with public engagement – and extensive community outreach. We must seek to stop individuals from becoming radicalized in the first place by putting in place strong programs to counter violent extremism in its earliest stages. In my time here in Norway, I have had the chance to learn about – and have been deeply impressed by – Norway’s Action Plan Against Radicalization and Violent Extremism.
Indeed, I have found it critical to engage in international exchanges with my counterparts regarding how we can do better on combating radicalization, and to learn from each other. I will take home with me important lessons from Norway’s experience. These lessons will help us implement our own National Strategy and Strategic Implementation Plan, which is led by the Justice Department, the FBI, the Department of Homeland Security, and the National Counterterrorism Center.
Our approach depends on building mutual trust and respect with members of communities across the country – so that we can understand their needs and concerns and to foster open dialogue with community leaders and citizens. This enables us to work with them to mitigate tensions and identify emerging threats.
At the heart of these engagement efforts in the United States are our United States Attorneys, the chief federal prosecutors in each of the jurisdictions they serve. Since 2012, our U.S. Attorneys have held or attended more than 1,700 engagement-related events. And the resulting relationships have not only served to build trust. They have also produced valuable cooperation, in some cases spurring community members to alert law enforcement about individuals who show an inclination to turn to violence.
Remember, when Mohamed Osman Mohamud’s father called the FBI for help because his son was embracing extremism, the FBI used that as the predicate to entrap him.
I mean, it’d be nice if, when the national security establishment found a young man talking trash in jihadist forums, they’d find him a healthier outlet. But right now, they instead throw undercover officers at the guys, bearing inert bombs.
Let’s hope the Europeans do teach us how to change that.
In the wake of yesterday’s PCLOB Report, Presidential Review Board Member Geoffrey Stone reminded that Obama’s hand-picked group recommended requiring warrants before accessing US person data collected via Section 702.
In effect, the Review Group recommended that backdoor searches for communications involving American citizens should be prohibited unless the government has probable cause and a warrant. This is essentially what the recently enacted House amendment endorsed.
The Review Group concluded that the situation under section 702 is distinguishable from the situation when the government lawfully intercepts a communication when it has probable cause and a warrant. This is so because, in the section 702 situation, the government is not required to have either probable cause or a warrant to intercept the communication. Because section 702 was not intended to enable the government to intercept the communications of American citizens, because our recommended reform would leave the government free to use section 702 to obtain the types of information it was designed and intended to acquire—the communications of non-U.S. citizens, and because the recommended reform would substantially reduce the temptation the government might otherwise have to use section 702 impermissibly in an effort intentionally to intercept the communications of American citizens, we concluded that this reform was both wise and essential.
But there’s a forgotten detail from ancient history of greater interest. Even the President ordered up changes for back door searches in criminal contexts.
Specifically, I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702.
Yet in spite of the fact the President asked the Attorney General and DNI to place additional restrictions on the government’s ability to keep, search, and use Section 702 collected information in criminal cases, here’s what we learned yesterday.
[A]lthough a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.
FBI requires that metadata queries, like content queries, be reasonably designed to return foreign intelligence or evidence of a crime. As noted above, however, the FBI does not separately track which of its queries involve U.S. person identifiers, and so the number of such metadata queries is not known.
As illustrated above, rules and oversight mechanisms are in place to prevent U.S. person queries from being abused for reasons other than searching for foreign intelligence or, in the FBI’s case, for evidence of a crime. In pursuit of the agencies’ legitimate missions, however, government analysts may use queries to digitally compile the entire body of communications that have been incidentally collected under Section 702 that involve a particular U.S. person’s email address, telephone number, or other identifier, with the exception that Internet communications acquired through upstream collection may not be queried using U.S. person identifiers.540 In addition, the manner in which the FBI is employing U.S. person queries, while subject to genuine efforts at executive branch oversight, is difficult to evaluate, as is the CIA’s use of metadata queries.
And the best estimate we’ve been given for how many of these FBI queries take places is a “substantial” amount.
It has been 6 months since the President ordered changes. And the FBI still can’t even count its US person queries, much less quantify them. PCLOB calls it “difficult to evaluate.”
Um, did James Clapper and Eric Holder just blow off the President’s order in January? Because it sure looks like FBI’s back door searches remain a relatively unregulated mess.
As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.
Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.
“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.
And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.
Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.
There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.
On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.
The closer the press gets to official sanction, the worse the reporting we’ll get.
As I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.
Of particular interest is this investigation.
The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.
The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.
The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.
Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.
Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.
Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.
And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”
A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.
Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.
But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.
After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Continue reading