Tag Archives: Glenn Fine

Is the Section 215 Dragnet Limited to Terrorism Investigations?

By:  Wednesday June 12, 2013 10:50 am

Unlike PRISM, most public discussions about the Section 215 dragnet program suggest that it is tied to terrorism. It’s a claim, for example, that Charlie Savage makes in this story, which he traces back to this statement from Director of National Security James Clapper.

And indeed, that statement does claim the program is limited to terrorism investigations.

The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.

The information acquired has been part of an overall strategy to protect the nation from terrorist threats to the United States, as it may assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.

[snip]

By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.

All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query. [my emphasis]

Even assuming James “Least Untruthful Too Cute by Half” Clapper can be trusted on this point, consider a few things about this statement.

  • It was released after only the first Guardian release. Thus, it was almost certainly rushed. And while NSA has claimed they had identified Edward Snowden before he started publishing, it is possible they did not know precisely what he had taken (though it is equally possible they already knew).
  • Clapper avoids mentioning precisely what program he is referring to in this statement, not even mentioning the Section 215 authority directly (though he does mention the PATRIOT Act. The Executive Branch has a well-established history — on this and related programs precisely — in addressing just a subset of a program so as to try to hide larger parts of it.

In addition, recall that when DOJ Inspector General Glenn Fine referred to these secret programs in a 2008 report on the use of Section 215, he spoke in the plural and included two classified appendices to describe them. In 2011, Acting Assistant Attorney General Todd Hinnen referred only to programs, plural. Thus, there almost certainly are at least two secret programs, and Michael Hayden has claimed Obama has expanded the use of this authority, which might mean there are more than two.

Furthermore, compare Clapper’s statement from June 6 — which mentioned only terrorists — with how he explained the dragnet program to Andrea Mitchell on June 9.

ANDREA MITCHELL: At the same time, when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls. People were astounded by that. They had no idea. They felt invaded.

JAMES CLAPPER: I understand that. But first let me say that I and everyone in the intelligence community all– who are also citizens, who also care very deeply about our– our privacy and civil liberties, I certainly do. So let me say that at the outset. I think a lot of what people are– are reading and seeing in the media is a lot of hyper– hyperbole.
A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world’s infrastructure, communications infrastructure is in the United States.

There are no limitations on the customers who can use this library. Many and millions of innocent people doing min– millions of innocent things use this library, but there are also nefarious people who use it. Terrorists, drug cartels, human traffickers, criminals also take advantage of the same technology. So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.

You think of the li– and by the way, all these books are arranged randomly. They’re not arranged by subject or topic matter. And they’re constantly changing. And so when we go into this library, first we have to have a library card, the people that actually do this work.

Which connotes their training and certification and recertification. So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person.

We ha– we are under strict court supervision and have to get stricter– and have to get permission to actually– actually look at that. So the notion that we’re trolling through everyone’s emails and voyeuristically reading them, or listening to everyone’s phone calls is on its face absurd. We couldn’t do it even if we wanted to. And I assure you, we don’t want to.

ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?

JAMES CLAPPER: Well, you have to start someplace. If– and over the years that this program has operated, we have refined it and tried to– to make it ever more precise and more disciplined as to which– which things we take out of the library. But you have to be in the– in the– in the chamber in order to be able to pick and choose those things that we need in the interest of protecting the country and gleaning information on terrorists who are plotting to kill Americans, to destroy our economy, and destroy our way of life.

In speaking of the way in which the government uses this dragnet collection as a kind of Dewey Decimal system to identify communications it wants to go back and view, he doesn’t limit it to terrorists. Indeed, he doesn’t even limit it to those foreign intelligence uses the PATRIOT Act authorizes, like counterintelligence (though Obama’s roll-out of Transnational Crime Organization initiative in 2011 — which effectively started treating certain transnational crime networks just like terrorists — may suggest only those crime organizations are being targeted).

Given two more days of disclosures after his initial Section 215 statement, Clapper acknowledged that PRISM has been used (at a minimum) to pursue weapons proliferators and hackers in addition to terrorists. Then, the next day, he at least seemed to suggest that Section 215 collection is used to pinpoint not just terrorists, but also drug cartels and other criminal networks.

And as I’ll show in a follow-up post, it seems to have targeted far more than that.


The Section 215 Dragnet Started as Abusive Exigent Letter Practice Wound Down

By:  Tuesday June 11, 2013 8:30 pm

Screen shot 2013-06-11 at 8.17.13 PMJulian Sanchez (who, if you’re not already following, you should, @normative) just made an important observation about the Section 215 collection that collects metadata on all phone calls every day.

Carriers keep call detail records for years. No earthly reason to demand DAILY updates just to preserve.

Thunk. The penny dropped.

In theory, no, there’s no reason to demand daily updates from the telecoms. In fact, in theory, you could always just ask the telecoms to conduct the kind of data analysis that is now being done by NSA.

But there’s a very good reason why they’re not doing it that way.

They tried. It was badly abused.

And they started moving away from that approach in March 2006, precisely when we know the Section 215 program started.

Most of what we know about the exigent letters program comes from a report DOJ’s Inspector General did in March 2007 [ed 6/16: oops--all this time I had the least damning report linked. read this one]  (my posts are here, here, here, here, here, here, here). But the short version is that the NY FBI office set up an office to have representatives of the three major telecom companies come in and directly access their data with FBI Agents looking over their back. As such, it’s probably similar to what PRISM accomplishes for internet providers (except that an NSA employee rather than a telecom employee does the search), and presumably akin to whatever NSA does with the Section 215 dragnet information (which, after all, replicates the telecom databases perfectly).

The problems — that that we know about from the unclassified report (there are secret and TS/SCI versions which probably have bigger horrors) — include:

  • FBI General Counsel had no apparent knowledge of 17% of the searches
  • Thousands of searches never got recorded
  • FBI lied to the telecoms about how urgent the information was to get the information
  • FBI did an unknown number of sneak peeks into the data to see if there was something worth getting formally

Altogether, the unclassified IG Report described 26 abuses that should have been reported to then (and once again, since Chuck Hagel became Defense Secretary) inoperable Intelligence Oversight Board.

That includes the tracking of journalist call records in at least three cases (one of which I suspect is James Risen).

In short, it violated many legal principles. And that’s just the stuff that actually got recorded and showed up in an unclassified report.

The Executive spent years trying to clean up the legal mess, with four OLC opinions between November 8, 2008 and January 8, 2010 making one after another argument to justify the mess.

And just as it became clear what a godforsaken mess all this was in March 2006, they started using Section 215 to collect all call records.

The effectively created the same databases that had been abused when the FBI had telecom employees doing the work, to have NSA or FBI do the very same work as well.

In short, the reason we don’t do what Sanchez is absolutely right we should do — ask the telecoms for information as we need it — is it’s not easy enough.

What I look forward to learning, though, is how having government employees do the work that telecom employees — who at least were bound by ECPA — avoids the same kind of abusive fishing expeditions.

Update: Here’s a description I wrote to summarize this 3 years ago.

This IG Report was the third DOJ’s Inspector General, Glenn Fine, has done on the FBI’s use of National Security Letters and “exigent letters,” though this is the first to focus almost exclusively on exigent letters. In 2003, the FBI installed representatives of AT&T and (later) Verizon and MCI onsite, with computers hooked up to their respective companies’ databases. Rather than using a subpoena or a National Security Letter to get phone records from them (both of which would have required a higher level of review), the FBI basically gave them a boilerplate letters saying it was an emergency (thus the “exigent”) and could they please give the FBI the phone data; the FBI promised grand jury subpoenas to follow. Only, in many cases, these weren’t emergencies, they never sent the grand jury subpoenas, and many weren’t even associated with investigations into international terrorism. In other words, FBI massively abused this system to get phone data without necessary oversight. Fine has been pressing FBI to either establish some legal basis for getting this data or purging it from FBI databases for three years, and they have done that with some, but not all, of the data collected. But the FBI has tried about three different ways to bring this practice into conformity with legal guidelines, all unpersuasive to Fine. The OLC opinion is the most recent of these efforts.

Also, here’s a timeline.


Is Robert Mueller, a Purported Hero of the Hospital Confrontation, Responsible for Section 215 Use?

By:  Monday June 10, 2013 11:00 am

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.”

Now, at least some of the people commenting publicly on the confirmation that Section 215 has been used to compile a database recording details on all calls Americans make say Section 215 has supported that purpose only since 2006. Dianne Feinstein, for example, says the practice has gone on for 7 years.

As far as I know, this is the exact three month renewal of what has been the case for the past seven years. This renewal is carried out by the FISA Court under the business records section of the Patriot Act. Therefore, it is lawful.

Seven years would put its start almost exactly at the March 9, 2006 renewal of the PATRIOT Act, which added new language on Section 215 in the wake of the December 15, 2005 exposure of Bush’s illegal wiretap program. In discussions of this collection program since last week, it has generally been accepted that’s when it all started.

Curiously (particularly given his insistence that PRISM only started in 2008, slides to the contrary notwithstanding), James Clapper made no claims about precisely when this practice started.

The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.

It is possible that this program was conducted under a different PATRIOT provision (such as the Pen Register ones) prior to 2006; in fact, Clapper never mentions the term “Section 215″ in his purported clarification of the program.

Now, consider one more detail. In a statement before the 2009 debate on PATRIOT Act reauthorization focusing closely on Section 215, Russ Feingold suggested that the debate over reauthorization in 2005, which led to purported initial use of Section 215 to conduct this dragnet, had been stymied by classification of how the PATRIOT had been implemented.

I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate. During the debate on the Protect America Act and the FISA Amendments Acts in 2007 and 2008, critical legal and factual information remained unknown to the public and to most members of Congress – information that was certainly relevant to the debate and might even have made a difference in votes. And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified.

[snip]

But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

There can be no question that statutory changes to our surveillance laws are necessary. Since the Patriot Act was first passed in 2001, we have learned important lessons, and perhaps the most important of all is that Congress cannot grant the government overly broad authorities and just keep its fingers crossed that they won’t be misused, or interpreted by aggressive executive branch lawyers in as broad a way as possible. [my emphasis]

This suggests the plan to use Section 215 may have been explicit in those classified debates.

Continue reading →


The Only Independent Reviewer of Targeting and Minimization Refuses to Review It

By:  Tuesday June 19, 2012 12:50 pm

On May 4, Senate Intelligence Committee members Ron Wyden and Mark Udall asked the Intelligence Community Inspector General to determine whether it was feasible to determine how many US persons have been spied on under the FISA Amendments Act.

The Temporally Perfect Fuck You

On May 22, the Committee marked up the renewal of the Act. During consideration of the bill, the Committee rejected Wyden and Udall’s efforts to require the IGs quantify such numbers based on their pending request to the IGs.

During the Committee’s consideration of this legislation, several Senators expressed a desire to quantify the extent of incidental collection under Section 702. I share this desire. However, the Committee has been repeatedly advised by the ODNI that due to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under Section 702 authority. Senators Ron Wyden and Mark Udall have requested a review by the Inspector General of the NSA and the Inspector General of the Intelligence Community to determine whether it is feasible to estimate this number. The Inspectors General are conducting that review now, thus making an amendment on this subject unnecessary. SSCI report on the bill reminds that the IC IGs are authorized–but not required too–conduct reviews of Section 702.

Note, elsewhere the bill report includes these authorized but not mandatory reviews as part of the “robust oversight” of this spying program.

In addition, the Inspectors General of the Department of Justice and certain elements of the Intelligence Community are authorized to review the implementation of Section 702 and must provide copies of any such reviews to the Attorney General, DNI, and congressional committees of jurisdiction.

Yet in rejecting the motion to actually mandate a review, Dianne Feinstein’s report emphasizes that this authority is optional.

Also while marking up the bill, Wyden and Udall attempted to direct the Committee’s Technical Advisory Group to review what was really going on with the FAA. That motion was ruled out of order (Kent Conrad joined Wyden and Udall on this one vote–otherwise the committee voted against all their efforts for greater oversight).

We also proposed directing the committee’s Technical Advisory Group to study FISA Amendments Act collection and provide recommendations for improvements. We were disappointed that our motion to request that the Technical Advisory Group study this issue was ruled by our colleagues to be out of order.

As a result, the bill was voted out of committee on May 22 without any requirement that the intelligence community report on how many US persons it is spying on with FAA.

On June 15, the IC IGs finally got back to Wyden and Udall. (h/t Wired) Note the dates cited in the response.

On 21 May 2012, I informed you that the NSA Inspector General, George Ellard, would be taking the lead on the requested feasibility assessment, as his office could provide an expedited response to this important inquiry.

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

As I stated in my confirmation hearing and as we have specifically discussed, I firmly believe that oversight of intelligence collection is a proper function of an Inspector General. I will continue to work with you and the Committee to identify ways that we can enhance our ability to conduct effective oversight. [my emphasis]

So IC IG Charles McCullough waited 17 days to even tell Wyden what he was going to do with the request, at which point–the eve of the bill markup–he told Wyden that Ellard would prospectively conduct the inquiry. So when the Committee decided not to mandate an IG review based on the “pending” review, it had not started yet. Continue reading →


FBI Still Inventing New Ways to Surveil People with No Oversight

By:  Saturday February 12, 2011 12:38 pm

Maris Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.


Glenn Fine Stepping Down as DOJ Inspector General

By:  Monday November 29, 2010 1:32 pm

Back during the FISA Amendment Act, Jay Rockefeller tried hard to prevent DOJ’s Inspector General, Glenn Fine, to have any role in overseeing the revamped domestic surveillance program. I always assumed that was because Fine, unlike the other Inspectors General (except perhaps John Helgerson, whom Michael Hayden had thoroughly neutralized by that point anyway) was actually effective. Fine was a particular problem because he treated the work FBI did in its counterterrorist guise–like surveilling peace activists–as he did his other work.

Well, it looks like the expansive executive branch doesn’t have Glenn Fine to worry about anymore.

Glenn A. Fine is stepping down as Inspector General at the Department of Justice after a decade in the post, Attorney General Eric Holder announced on Monday.

“I believe it is time for me to pursue new professional challenges,” Fine, 54, said in a letter to President Barack Obama and to Holder in which he said he was proud of his service at DOJ.

Holder, in turn, praised Fine, who will depart in January. “In the Justice Department’s most critical operations and practices, especially our efforts to combat corruption, fraud, waste and abuse, the work done by the Office of the Inspector General is essential,” Holder said on the DOJ’s internal “watchdog.”

“Thanks to Glenn’s outstanding leadership, this Office has never been stronger,” Holder said in a statement.

Note, Fine’s office has recently been under attack for its recent report showing that Chris Christie and other Rove favorite US Attorneys like Mary Beth Buchanan were big spenders on the taxpayer dime. Let’s hope that noise machine whir has nothing to do with his departure.


DOJ IG Doesn’t List Foreclosure Fraud among Significant Performance Challenges

By:  Monday November 15, 2010 10:51 am

A month ago, the Financial Fraud Task Force first started to get around to investigating the systemic fraud in our foreclosure system.

Federal investigators are exploring whether banks and other financial firms broke U.S. law when using fraudulent court documents to foreclose on people’s homes, according to sources familiar with the effort.

The criminal investigation, still in its early days, is focused on whether companies misled federal housing agencies that now insure a large share of U.S. home loans, and whether the firms committed wire or mail fraud in filing false paperwork.

The announcement was tied to a Shaun Donovan announcement that a HUD investigation started in May had identified problems from some mortgage servicers; HUD is a member of the Financial Fraud Task Force.

Donovan said the administration had yet to complete its review, which began in May. Thus far, though, it had found “significant difference in the performance of servicers, and in particular, information that shows us there is not compliance with FHA rules and regulations around loss mitigation.” Donovan said the findings were limited to firms that deal with FHA loans. He declined to single out servicers.

All of which would seem to suggest that HUD–and therefore the Financial Fraud Task Force–knows there’s some there there (though they deny it is systemic).

Which is why I find it rather troubling that, two months after it became clear foreclosure mills and servicers are engaging in rampant fraud, DOJ’s Inspector General Glenn Fine does not specify it among the significant performance challenges for the year (Financial Crimes generally places seventh on his list of issues, after IT planning and violent crime, the latter of which is falling).

7 Financial Crimes and Cyber Crimes: The need to aggressively combat financial crimes and cyber crimes is an increasing challenge for the Department. Financial fraud continues to affect the economy, and the increased use of computers and the Internet in furtherance of financial crimes, as well as the international scope of these criminal activities, has exacerbated the challenge of cyber crime.

In November 2009, a presidential Executive Order created the Financial Fraud Enforcement Task Force (Task Force). The Department described the Task Force as the “cornerstone” of its work in the financial fraud area. Led by the Department, the Task Force combines the work of several agencies to focus on mortgage crime, securities fraud, American Recovery and Reinvestment Act (Recovery Act) and rescue fraud, and financial discrimination.

In connection with the Task Force the Department launched Operation Stolen Dreams, a multi-agency initiative designed to combat mortgage fraud. In June 2010 the Department reported that this operation involved the prosecution of 1,215 criminal defendants nationwide who allegedly were responsible for more than $2.3 billion in losses. The Department also reported that the operation recovered more than $147 million through 191 civil enforcement actions.

The Department and the Task Force are also focusing investigative resources on securities fraud as well as on Recovery Act fraud and fraud in other rescue funds. Among other things, the Department is providing training to federal grantees and contractors on ways to prevent and detect such fraud.

Note that Operation Stolen Dreams is focused on the small-scale thugs that pumped up housing prices. That’s apparently a priority. But Fine, at least, seems to think an investigation into the GMACs and BoAs, the David Sterns and Lender Processing Services, is not a priority.

He may well be right in that DOJ doesn’t consider this a top challenge. So while counterterrorism is number one–based partly on two unsuccessful attacks launched by losers in the last year–the wholescale assault on our economy is apparently not even part of number seven.


The Six FBI Reports Treating Merton Center Anti-War Activism as Terrorism

By:  Thursday September 23, 2010 5:44 am

Glenn Fine–DOJ’s Inspector General–is usually one of the most credible agents of oversight in the federal government. But his last report–examining whether the FBI investigated the First Amendment activities of lefty groups as terrorism–is a masterpiece of obfuscation. It manages to look at three different investigative efforts of the Thomas Merton Center’s anti-war activism, all treated as terrorism, and declare them unconnected and therefore not evidence that during the Bush Administration anti-war activism was investigated as terrorism.

The coverage of the report has largely focused on Robert Mueller’s reportedly unintentional lies to Congress explaining why an anti-war event sponsored by Pittsburgh’s Thomas Merton Center was investigated in the guise of international terrorism. For good examples, see Charlie Savage and Jeff Stein’s versions of the story.

The short version of Meuller’s misinformation to Congress the report offers is that 1) a rookie FBI officer was sent out as make-work to improperly surveil a peace protest, 2) after that became clear through FOIA, his boss and a lawyer in the office and the FBI’s Counterterrorism Division tried to retroactively invent reasons for the surveillance, 3) largely through the bureaucratic game of telephone that resulted, Robert Mueller (and in more significant ways, a response to a Patrick Leahy Question For the Record) provided false information to Congress.

One cornerstone to this rather credulous narrative is the way the IG Report treats the surveillance of Pittsburgh’s Thomas Merton Center. Rather than treat all the surveillance of the center together–which would reveal an obvious pattern and much better reason to lie to Congress–the report treats  several different iterations of surveillance separately. As a result, Fine was able to look at at least six reports treating Merton Center anti-war activism as terrorism (and ignore one more FBI investigative effort) and declare each of them acceptable.

The Chronology of FBI’s Thomas Merton Center Surveillance

Let’s start with the timeline (note all the names, except that of Farooq Hussaini, are pseudonyms chosen by DOJ IG, as reflected by the quotation marks) which shows fairly sustained surveillance of the Center over the course of three years:

November 29, 2002: Supervisory Special Agent “Susan Crosetti” sends rookie FBI officer “Mark Berry” to surveil people associated with the Thomas Merton Center distributing leaflets opposing the Iraq War. Berry takes photos of some participants. The report recording the surveillance is placed in the “international terrorism” file.

January 2003: Secret Service agent visits Merton Center to discuss upcoming protest in Pittsburgh.

February 26, 2003: Pittsburgh office produces Letterhead Memorandum, titled “International Terrorism Matters,” describing a vigil the Merton Center was planning for when the Iraq War started, as well as local events that had taken place on February 15, 2003 in association with the NY-based United for Peace and Justice sponsored protest.

April 4, 2003: FBI produces EC on Pittsburgh organizational meeting at the Merton Center in advance of Miami FTAA.

July 8, 2003: FBI EC describes threats that FTAA protesters would use puppets to attack riot police and Molotov cocktails.

July 10, 2003: First document recording ties between Person B (alleged to have pro-Palestinian feelings) and the Merton Center (note, this document must have been withheld from the FOIA).

July 21, 2003: Miami Field Office opens domestic terrorism investigation in relation to the FTAA protests.

July 25, 2003: Miami Field Office sends EC to Pittsburgh Field Office on August 29-31 planning meeting for FTAA including Merton Center.

July 26, 2003: FBI designates FTAA a Special Event worthy of heightened surveillance.

August 29-31, 2003: FBI conducts research on FTAA planning meeting at Merton Center in Pittsburgh.

October 29 (?), 2004: First report from confidential source mentioning the Merton Center (all these reports were faxed on July 8, 2005 and declassified on January 4, 2006). The source was apparently the friend of an agent’s son, and included reporting on planning for an anti-war march the Merton Center was planning. The source was purportedly recruited for an investigation into several alleged members of the Pittsburgh Organizing Group; that investigation was a terrorism investigation.

February 25, 2005: Second report from confidential source on the Merton Center.

March 1, 2005: Third report from confidential source on the Merton Center.

March 19, 2005: Fourth report from confidential source on the Merton Center.

Unknown date (before May 18, 2005): FBI agent visits Merton Center intern at intern’s residence asking for information about Merton Center activities.

May 18, 2005: ACLU PA FOIAs FBI documents referencing the Thomas Merton Center (among others).

Unknown date, 2006: Pittsburgh’s Chief Division Counsel reviews the source reporting (and two earlier anti-war reports) and tells agent to close the source.

January 23, 2006: “Carl Fritsch,” a member of Pittsburgh FBI’s legal staff, and Crosetti, both search FBI databases on Farooq Hussaini’s name.

February 1, 2006: National ACLU files FOIA.

February 8, 2006: FBI Field Division Attorney “Stanley Kempler” sends Record Management Division a routing slip, written by “Carl Fritsch,” indicating that the November 29, 2002 surveillance had been directed at Farooq Hussaini and alleging that Hussaini was associated with “Person B” who was the subject of a different investigation. This routing slip was–in the IG Report’s judgment–the first attempt to invent a cover story for the November 2002 surveillance. The same slip provided background on the February 26, 2003 and urged RMD not to release it.

March 14, 2006: ACLU releases FOIA documents, focusing on November 29, 2002 report; FBI issues a press release see PDF 205) inventing a public rationale for the surveillance and purporting to address the February 26, 2003 report.

March 22, 2006: FBI Director’s Research Group writes document “ACLU Allegations of Spying.”

May 2, 2006: Patrick Leahy asks Robert Mueller why FBI was surveilling anti-war demonstrators.

“Soon after” hearing: Leahy asks several Questions For the Record, including for any “earlier investigative memos” that served as the basis for the November 2002 surveillance.

May 16, 2006: Counterterrorism Division’s Executive Staff tasks “Clarence Parkman,” from their Iraq Unit, to draft a response to Leahy. Minutes earlier, Parkman had done a database search on Thomas Merton Center. Two analytical employees in the Iraq section emailed Kempler (cc’ing Berry) for more information. Kempler forwarded the request to Crosetti.

June 5, 2006: Iraq Unit of Counterterrorism Division provides 3-paragraph response to Leahy’s question about November 2002 anti-war rally newly claiming that Person B was the subject of the surveillance. The response also claims–contrary to the description in the original EC but corresponding to story Berry first told to IG–that Berry took pictures of just one, female, protester.

The IG presents this series of surveillance actions directed at the Merton Center as discrete events. It attempts to find an explanation for each incident of surveillance in isolation, and as such, is able to describe each as legally permissible, leaving only the attempt to retroactively invent an explanation for the November 2002 surveillance as really problematic.

But examining the other reports makes it clear that there was a pattern of investigating the Merton Center’s anti-war activities under the guise of terrorism.

Continue reading →


More Missing Emails at DOJ?

By:  Wednesday September 22, 2010 2:27 pm

I’m still working on a big post on the DOJ IG Report on domestic spying. But for the moment I wanted to call attention to a footnote that seems to suggest the emails from FBI employees in Pittsburgh who had conducted surveillance of the Thomas Merton Center and/or invented an excuse for doing so after the fact were unavailable when DOJ’s IG asked for emails in association with this investigation. The foonote (see PDF 60) reads:

We requested all e-mails from the Pittsburgh employees connected with this matter for the relevant dates. However, the FBI provided none that pertained to this matter.

We know there should be some emails, because we know that the supervisor the report calls “Susan Crosetti” received emails from the Counterterrorism Division in 2006 as they were trying to respond to Pat Leahy’s questions about the surveillance. The IG got the emails from CTD–including one asking the question, “do we know who was being investigated at the rally?” But neither Crosetti’s version of the email, nor its response, ever got turned over to the IG.


Did OLC Change the Understanding of Riot Investigations to Time w/RNC Convention?

By:  Tuesday September 21, 2010 2:09 pm

There’s an interesting detail in the IG Report on FBI’s investigations of peace groups that suggests FBI was asking OLC for an interpretation of the approval required before conducting a riot-related investigation.

The Attorney General’s Guidelines on “Reporting on Civil Disorders and Demonstrations” were in effect from 1976 until they were repealed and partially incorporated into the 2008 Guidelines. Two FBI OGC attorneys we interviewed told us it was their interpretation that the Guidelines required the FBI to request Attorney General approval to open an investigation under the federal riot statute. 18 USC 2101, and the civil disorders statute, 18 USC 231.

[snip]

In July 2008 the DOJ Office of Legal Counsel (OLC) sent an informal opinion to OGC that stated that the Demonstration Guidelines do not require Attorney General approval to open an investigation under the riot statute or the civil disorders statute. However the OLC attorney also said that “as a prudential matter” the FBI should consider requesting such approval before initiating investigations under these statutes. The 2008 Attorney General’s Guidelines repealed the Demonstration Guidelines and requires the approval of the Attorney General, Deputy Attorney General, or the Assistant Attorney General for the Criminal Division only when the FBI collects information relating to actual or threatened disorders to assist the President in determining whether, pursuant to 10 USC 331-33, “use of armed forces or militia is required and how a decision to commit troops should be implemented.”

This footnote is presented in the context of an investigation pertaining to the FTAA meeting in Miami in 2003, but it’s the changes in interpretation in 2008 that I’m most interested in.

This footnote seems to suggest that in July 2008, in the weeks before the Presidential Convention season, someone in OLC lowered the bar for starting an investigation into a potential riot. That’s all the more interesting, given the liberal use of the riot statute Ramsey County and FBI used in preemptively arresting people leading up to the RNC Convention in September of 2008.

In any case, the lowered standard for investigating people for planning riots appears to be the rule now, as the government only needs to get higher approval for riot investigations if they plan to militarize the response.