Jeff Sessions

The 2009 Last Ditch Attempt to Undercut the FISA Court

As I laid out in this timeline, sometime in fall 2009, the NSA submitted an end-to-end report describing the Internet dragnet. Then, weeks later, David Kris wrote Reggie Walton, admitting that the had been collecting data outside the categories approved by Colleen Kollar-Kotelly in 2004 — that is, admitting that the rosy picture NSA had painted in its end-to-end report was entirely false. Sometime shortly thereafter, DOJ decided not to submit its Internet dragnet reauthorization application, effectively shutting down the Internet dragnet on or around October 30, 2009 until John “Bates-Stamp” Bates reauthorized it sometime around July 2010.

Which is why I find the discussion of the PATRIOT reauthorization during precisely that time period so interesting.

On October 1 the Senate Judiciary Committee had its first open hearing on PATRIOT reauthorization.  At that point, an effort to require Section 215 have particular ties to terrorism got shut down in an action we now know served to preserve the phone dragnet. The discussion around it created the interest for a classified briefing. On October 7, they got that briefing. Also on October 7, the Obama Administration gave Jeff Sessions a bunch of changes they wanted off of what the bill had been on October 1.

On October 8, the Senate Judiciary Committee had another open hearing on PATRIOT reauthorization. The committee adopted Sessions changes over DiFi’s already watered down version of what Pat Leahy had originally pushed on October 1 (this is what elicited Russ Feingold’s concerns about SJC acting as the Prosecutors Committee). The changes limited Section 215 protections for libraries, fixed the gag order problem with NSLs with a non-fix that is similar to one included in USA Freedom Act. Most significantly, they watered down what would have been new minimization procedures for the PRTT authority (which were ultimately stripped in any case), making clear minimization procedures should only be adopted in exceptional circumstances. As I guessed correctly at the time, this was probably done to protect the PRTT dragnet that was collecting vast amounts of Internet metadata (as well as, contrary to Jeff Sessons’ claims in the hearing, content).

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

By asserting it had the authority to impose minimization procedures on the Internet dragnet, the FISC tried, utterly unsuccessfully, to prevent the NSA from illegally wiretapping Americans. When the FISC again asserted its authority to impose minimization procedures, NSA just took its toys and went overseas, where it didn’t have that meanie rubber stamp FISC to contend with.

I raise this not only because it suggests DOJ was making legislative efforts to undercut the FISC just as they discovered a huge problem with their Internet dragnet. But also because, in my opinion, the USA Freedom Act makes a similar effort to withdraw any claim the court might make to be able to impose and review compliance with minimization procedures. I don’t think it’s an Internet dragnet this time — as I’ll write later, I think it’s either location (which is fairly banal) or more interesting flow analyses. But I think Congress — with the support of civil liberties NGOs, this time — is still trying to undercut the way that FISC has best been able to impose some controls on the government’s spying.

On the Refusal to Exercise Oversight over Vast Surveillance Programs, Episode 117

The Joint IG Report on the illegal wiretap program left out all discussion of what happened to the Internet and (to a lesser extent) phone metadata collection that got moved into Pen Register/Trap&Trace and Section 215 collection, respectively, as described by the NSA Draft IG Report (see page 39 ff).

The transition of certain PSP-authorized activities to FISC orders is described in detail in Section 5 of the classified report and Chapter Five of the DOJ OIG Report. Further details regarding this transition are classified and therefore cannot be addressed in this unclassified report.

But the report did make it clear that Glenn Fine, then DOJ’s Inspector General, had recommended DOJ and other Intelligence Committee agencies track whether these programs were useful in their new form.

As noted above, certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the FISC. The DOJ OIG believes that DOJ and other IC agencies should continue to assess the value of information derived from such activities to the government’s counterterrorism efforts.

[snip]

Finally, the collection activities pursued under the PSP, and under FISA following the PSP’s transition to that authority, involved unprecedented collection activities. We believe the retention and use by IC organizations of information collected under the PSP and FISA should be carefully monitored.

The Joint IG Report came out in July 2009. The debate over extending the PATRIOT Act started in earnest in September 2009.

Yet not only wasn’t that review baked into the extension, but when Patrick Leahy tried to include additional oversight that would include, among other things,

  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism

Dianne Feinstein got Leahy to take much of that out in a substitute bill, and then Jeff Sessions, seemingly working on behalf of the Administration, gutted things further in the Senate markup. It was fairly clear then that the IC — if not the Administration personally — wanted to make sure this oversight did not get added to the PATRIOT Act.

And it didn’t.

The next year, Glenn Fine — who, of course, was the guy who recommended increased oversight in the first place — said he’d do the reviews anyway.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG. [my emphasis]

Writing in 2010, when both metadata collection programs were still ongoing under these authorities, this basically laid out a plan to review all the secret metadata collection hidden inside these authorities.

Fine wrote that in June; in November of that year, he announced his resignation, saying he wanted to pursue new professional challenges.

Continue reading

Holder Testifies Before Senate Judiciary Committee

The Committee feed is screwy right now, but cspan.org is carrying it. Pat Leahy will not be there today; he’s at a funeral. I don’t know if Herb Kohl (who will act as Chair) had an opening statement or not. But Jefferson Beauregard Sessions is up now whining about civilian trials.

(Incidentally, at 10, the House Judiciary Commitee will have Glenn Fine and Valerie Caproni talking about the Exigent Letter IG Report. I’ll do my best to keep my eye on that too.)

Sessions apparently doesn’t know there was a hearing last week in a military commission, which basically consisted of everyone looking at each other and admitting that MCs have no rules right now.

Here’s Holder’s statement.

Holder: 19 USA nominees and 17 Marshal nominees pending.

Holder now listing all the terrorists prosecuted in civilian courts.

Use every tool available. Includes both civilian and military commissions. Referred 6 cases to military commissions. It would seriously weaken national security not to have civilian trials.

9/11 Commission trial. No decision yet.

Kohl: Review of 240 detainees. In your testimony did not mention if and when you plan to close Gitmo. Update?

Holder: Still intention to close Gitmo. Once was bipartisan support for closing it. Both men who ran for President last year supported closing Gitmo. Will close as soon as we can.

Holder basically says they intend to use Thompson to hold people indefinitely.

Kohl raises Holder’s comment about reading Miranda rights to Osama bin Laden.

Kohl: Do you still believe civilian trials are better? When can this decision be made.

Holder: Reviewing decision. NY is not off the table. Have to take into consideration concerns raised by local community. Expect to be able to make determination in a number of weeks.

Continue reading

Jeff Sessions: George Bush Waited 7 Years to Set Up Military Commissions

Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.

[snip]

The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.

The 390 Terrorists Convicted in Civilian Courts

The Department of Justice has just sent a letter to the Senate Judiciary Committee answering early questions about how many terrorists have been convicted or plead guilty in civilian courts. Between those convicted of terrorism-related crimes (150) and individuals with ties to international terrorism convicted of other crimes (like obstruction or perjury–the total here is 240), 390 people have been sent to prison using our civilian courts.

As you might recall, there has been some debate over what the “real” number of terrorists convicted in civilian courts is. After the Obama Administration used the same number the Bush Administration had–a number which combines terrorist charges with non-terrorist charges–Republicans squawked.

But as DOJ points out, having other charges available is one of the advantages to the civilian courts:

The second category includes a variety of other statutes (like fraud, firearms offenses, false statements, or obstruction of justice) where the investigation involved an identified link to international terrorism. There have been more than 240 individuals charged in such cases since September 11, 2001. Examples of the international terrorism nexus identified in some of these cases have also been provided for your review.Prosecuting terror-related targets using these latter offenses is often an effective method—and sometimes the only available method—of deterring and disrupting potential terrorist planning and support activities. Indeed, one of the great strengths of the criminal justice system is the broad range of offenses that are available to arrest and convict individuals believed to be linked to terrorism, even if a terrorism offense cannot be established. Of course, an aggressive and wide-ranging terrorism investigation will net individuals with varying degrees of culpability and involvement in terrorist activity, as the NSD chart reflects. Arresting and convicting both major and minor operatives, supporters, and facilitators can have crippling effects on terrorists’ ability to carry out their plans. [my emphasis]

This is a point David Kris made in Congressional testimony last year–there are actually charges you can’t use in a military commission but which you can use in a civilian court (though the Obama Administration appears prepared to press the limits of MCs anyway).

The list of terrorists convicted itself is interesting in its own right. Among other things, it demonstrates the degree to which terrorism is still largely–though not exclusively–targeted at Muslims (though in the first page itself there are individuals tied to the Tamil Tigers and one woman from FARC who was quietly rounded up last year after the Ingrid Betancourt rescue).

Not on this list? Right-wing American terrorists like Scott Roeder.

Whose Non-Disclosure Was Worse: Bybee’s or Holder’s?

John Kyl has officially announced he intends to waste an oversight hearing on March 23 beating up Eric Holder because he did not disclose an amicus brief opposing unlimited Presidential power.

Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.

[snip]

Kyl called the non-disclosure of the brief “rather distressing.”

“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

And the other Republicans on the Senate Judiciary Committee are practicing their pout-rage, as well.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said he was “deeply concerned” by Mr. Holder’s failure to disclose the brief during his confirmation.

“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Mr. Sessions said in a statement. “This is an extremely serious matter and the Attorney general will have to address it.”

Now, as I said earlier, Holder clearly should have disclosed this brief–though his views were already well known.

But he’s not the first nominee to go before SJC who failed to disclose key legal writings. After all, Jay Bybee secured a lifetime appointment as an Appeals Court Judge without disclosing the fact that he rubber stamped legal sanction for torture. And unlike Holder, Bybee’s actions were totally unknown at the time. At the time, just one Democrat, Jane Harman, had even been briefed that CIA was doing the torture (though Pelosi had been briefed that they were considering torture), the memos specifically had not even been revealed to her, and even if she knew about it, she would not have been permitted to share it with SJC.

And yet, barring Bybee’s resignation or prosecution in some international court, Bybee will be serving on the 9th Circuit long after Holder has moved on as Attorney General.

So whose non-disclosure is more of a problem? Jay Bybee, who failed to hint that he had authorized torture? Or Eric Holder, whose views were well-known and tested during his confirmation hearing?

The Next Attack: Holder’s Amicus Curiae Brief Against Unlimited Presidential Power

As Jake Tapper reports, the next attack the McCarthyites have planned is on Eric Holder, for once saying in an amicus curiae brief that it’s possible following the Constitution will make it harder to detain potential terrorists.

In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief questioning President Bush’s assertion that he had the inherent authority to indefinitely detain as “enemy combatants” American citizens captured in the US.

The brief, offered in the case Donald Rumsfeld v Jose Padilla, can be read HERE.  Holder’s co-authors include former Attorney General Janet Reno, former deputy Attorney General Philip Heymann, and the former counsel for the CIA Jeffrey Smith.

A Republican official on the Senate Judiciary Committee tells ABC News that Holder did not disclose this amicus brief before his confirmation hearings.

The brief is actually refreshing in its simplicity. It recites all the means the executive branch has to combat terrorism, then says the President doesn’t also need the power to detain Americans without any judicial oversight. I can see why and how the Republicans will make a stink of it, but that doesn’t mean they are right.

But there’s a part of the brief that deserves particularly close attention–because it raises the implicit question of why the Bush Administration didn’t just charge Jose Padilla, if they could back up the claims they made about him.

When Padilla was arrested pursuant to the material witness warrant, his terrorist plans were thwarted. He was then available to be questioned to the same extent as any other citizen suspected of criminal activity. Moreover, the facts set forth in the President’s findings, and the facts presented to the District Court, are more than sufficient to support criminal charges against Padilla, including providing material support to designated terrorist organizations, 18 U.S.C. § 2339B; providing material support to terrorists, id. § 2339A; conspiracy to use a weapon of mass destruction, 18 U.S.C. § 2332a; and attempted use of a weapon of mass destruction, id. § 2332a(a)(1).36 Continue reading

Holder SJC Oversight Hearing Liveblog

Leahy talking about the things that Holder has accomplished: improvements in civil rights, recovery funds to law enforcement. Talks about the things that need to improve: state secrets, press, healthcare fraud, hate crimes. Troubled about continuation of Bush Administration’s practice of invoking state secrets to shut down wrong-doing. Access to courts is important. Safely and effectively closing Gitmo. Reviewing the bad terrorists that we have held: Timothy McVeigh, Sheikh Adbul Rahman, Zacarias Moussaoui.

"The idea that we cannot find a place to house 250 detainees is not rational." 

Leahy calling on hate crimes bill. 

Sessions: Starts by talking about details of Sotomayor’s confirmation hearings. Disappointed–put Constitution and rule of law above politics. I don’t think the actions we’ve seen so far are consistent. I find myself reading about political appointees who have overruled career attorneys. Rejected OLC that Congress’ recent legislation on DC voting was unconstitutional. [Well, Sessions, if you would approve Dawn Johnsen, then maybe Holder would listen to OLC?] Pressure from the left when you allowed DOJ to release OLC opinions on torture. 

[blah blah blah: Sessions demagoguing.]

[career attorneys career attorneys career attorneys--Sessions is pretending that these people weren't burrowed in by Rove and Cheney]

[pre-9/11 pre-9/11 pre-9/11 pre-9/11]

Jeff Sessions pronounces it "Fo-Toes."

Holder: Highest priority to protect against acts of terrorism. Close Gitmo. Southwest threat–drug cartels. Civil Rights. Foreclosure scams. Finance fraud. Healthcare fraud.

Leahy: Black Panther. I understand a career employee made the final decision of which people to charge. I thought I’d point that out–want to have the facts here. Injunction against person who was intimidating on decisions. [huh?] President’s nominee in Civil Rights. [Don't know if he said OLC too] Holocaust shooting. Open and classified filings, number of hate crimes and positions more vile. 

Holder: If any doubt about need for legislation, wiped out by Holocaust and other hate crimes. 10 years ago I testified in favor of this bill. Expands scope of federal hate crimes to include gender, disability, sexual orientation. 

Leahy: NYT’s latest story on wiretapping. I don’t know how we justify continuing these expansive authorities, even expanded authorities being abused.

Holder: Work closely to ensure that national security conducted consistent with legal authorities. Framework that we always try to follow. Congress establishes safeguards. "really strict guidelines."

Leahy: The more we find out, not from the intelligence agencies, not from government, but NYT, we get it quicker, more detail, and we get the crossword puzzle. I don’t know how Continue reading

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

Continue reading

FISA Debate Liveblog

Jello Jay on bulk collection (time from opponents, this is a Feingold amendment).

Feingold argues amendment will prevent bulk collection by requiring govt to have some foreign intell interest in bulk info.

I believe will interfere with legitimate intelligence activities. I do not believe it provides additional protections. There important classified reasons underlying that concern.

Why it’s unnecessary: Bulk collection would be unreasonable by Fourth Amendment. Bill provides that collections have to be in accordance with 4th Amendment. Minimization. Cannot primarily target a US person.

Feingold only requires that it certify that bulk intelligence has foreign intelligence interest. But it already requires that the collection is targeted at people outside of the US. Remedy does not improve upon protection in bill. I thus oppose.

Bond

A number of inaccurate statements. It’s not an understatement to say they could shut down our intelligence collection.

3979, Feingold and Webb.

Amendment says that FISA is supposed to be foreign to foreign. Focus on foreign to foreign is misplaced. We cannot tell if a foreign terrorist is going to be communicating with another terrorist in another country. It does no good to only collect foreign to foreign. Impossible burden that FISC judges told us shut down their review. [That's news, saying that it was the review of foreign to US that overwhelmed the FISC.]

This would stop collection. One intell professional said it would devastate the collection. Targetnet versus dragnet.

Blah blah blah; I’m going to misrepresent Feingold’s bill, so I can rebut it.

[Wow. Just looked at the screen. Bond has a whole lot of lilac on. Perhaps he knows that way more people turned out last night in his state for Democrats than Republicans?]

I’m sure the FISC judges would appreciate the notion that they’re doing a bad job. [wow that was dishonest] Continue reading

Emptywheel Twitterverse
emptywheel @stevenzzhou Remember Section 215 is used for other things as well, notably financial records. They'd still be available in bulk.
5mreplyretweetfavorite
emptywheel @stevenzzhou Yes, at the individual level, rather than the programmatic level (tho JUST for phone records). Definitely better on that front.
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bmaz RT @JustADCohen: Court's reaction to prosecutor here is telling, shows disconnect, presages huge fight over records. http://t.co/FmLcHFvb3v
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bmaz @JustADCohen How could the court do that before the GJ concludes and challenges and protective motion time given? @stltoday
9mreplyretweetfavorite
emptywheel @YousefMunayyer Dunno. This is going to be someone signing big contracts w/lots of contractors. Sounds like great way to get rich.
9mreplyretweetfavorite
bmaz .@JustADCohen Why did anybody ever believe the court had already agreed to release of GJ material? @stltoday
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emptywheel @ShawnMusgrave That's all in anticipation of Section 215 report, should have HUGE newly declassified chunks, likely won't @charlie_savage
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emptywheel @ShawnMusgrave Real story coming out of several IG reports @charlie_savage has re-liberated so far is how much unclass they're still hiding
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bmaz RT @downwithtyranny: @KagroX- Funny how everything Lindsey Graham says or does comes down to the mendacity wrapped up in being a closet cas…
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emptywheel RT @bmaz: A Charlie Brown Congress http://t.co/TKYKw7GvQC Via @RosenzweigP
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emptywheel @rgoodlaw See also war on terror.
14mreplyretweetfavorite
emptywheel @rgoodlaw It's not clear we're well situated to do well bc 1) we make obvious mistakes 2) we don't care to offer better alternatives.
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