Today’s Inspector General Report on FBI’s use of National Security Letters has set off a bunch of alarm bells in my head.
At issue are two unexplained problems.
First, the Inspector General identified a huge drop in NSL use for the years covering this report: FBI obtained 49,425 NSLs in 2006, the year before this report. It obtained 54,935 afterwards. The years in-between — the 3 years covered by this report — NSLs dropped off a relative cliff, with 20% fewer in 2007 and even fewer in 2009.
The IG wasn’t able to offer any explanation for this, besides the possibility that increased scrutiny on NSL use led people to use other methods to get this information.
However, two supervisors and a division counsel told us that they believe agents use NSLs less often now than they did five years ago. These individuals told us that because of increased scrutiny on NSL use agents employ alternative investigative tools when possible.
In testimony last year, Jim Comey said FBI agents would just use grand jury subpoenas rather than NSLs if the NSLs became too onerous, so that may be where the activity disappeared to.
Hey, if 20% of FBI NSLs could be grand jury subpoenas without any problem, let’s make them do that!
It’s FBI’s other counting problems — and its non-answers — that have me even worried.
According to the IG, the FBI is not reporting as much as 7.3% of its NSL use to Congress. For example, when the IG tried to pull NSLs by NSL type (that is, toll billing, financial records, electronic transaction records), it found a significant discrepancy between what had been reported to Congress and what FBI’s internal spreadsheets showed.
[T]he NSL data in the itemized spreadsheets does not exactly match the NSL data reported to Congress in 2008 and 2009. The total number of requests reported for each year [by transaction type] is more than the total number of NSL requests reported to Congress by 2,894 and 2,231 requests, respectively. (63)
So for 2009, where FBI requested just 30,442 NSLs, FBI did not report 7.3% of the NSLs it requested.
(I can’t double check my math here because FBI redacted some of these tables, but I guess that’s one of the hazards of overclassifying things.)
That’s troubling enough, as is FBI’s lackadaisical attitude towards correcting the disparity.
After reviewing the draft of this report, the FBI told the OIG that while 100 percent accuracy can be a helpful goal, attempting to obtain 100 percent accuracy in the NSL subsystem would create an undue burden without providing corresponding benefits. The FBI also stated that it has taken steps to minimize error to the greatest extent possible.
Ho hum, we’re just the FBI, why expect us to be able to police ourselves?
But it gets weirder.
First, the one theory the IG came up with to explain the discrepancy is that FBI is not counting all the manual NSLs that bypass their automatic counting system implemented in response to the first IG Reports on NSLs.
In fact, they’re not: FBI’s Inspection Division found they’re not counting some significant (not single digit) percentage number of their manual NSLs (they redact how much they’re not counting on page 39).
But the IG seems to suspect there may be even more manual requests that are not being counted at all.
[T]he total number of manually generated NSLs that the FBI inspectors identified is relatively small compared to the total number of 30,442 NSL requests issued by the FBI that year. What remains unknown, however is, whether the FBI inspectors identified all the manually identified generally NSLs issued by the FBI or whether a significant number remains unaccounted for and unreported.(58)
If you guessed that FBI redacted under what circumstances FBI permits agents to bypass this automatic counting system, you’d be right. That discussion is in footnote 35 on page 17, and again on pages 113-115.
But I worry, given one observation from the IG, that they’re bypassing the automatic system in cases of “sensitive” investigations. Some apparent moron tried to explain why the IG found higher numbers for NSLs than Congress because the NSLs related to sensitive investigations were being reported to Congress but not the IG.
After reviewing the draft of this report, the FBI told the OIG for the first time that the NSL data provided to Congress would almost never match the NSL data provided to the OIG because the NSL data provided to Congress includes NSLs issued from case files marked “sensitive,” whereas the NSL data provided to the OIG does not. According to the FBI, the unit that provided NSL data to the OIG does not have access to the case files marked “sensitive” and was therefore unable to provide complete NSL data to the OIG. The assertion that the FBI provided more NSL data to Congress than to the OIG does not explain the disparities we found in this review, however, because the disparities we found reflected that the FBI reported fewer NSL requests to Congress than the aggregate totals. (58)
Aside from the revelation that FBI doesn’t understand how numbers work — that if Congressional reporting reflected a larger universe of NSLs than what the IG got to see, Congressional numbers should be higher, now lower — this also seems to mean that the IG is not being permitted to review the NSLs relating to sensitive investigations.
Now, it’s not entirely clear what FBI means by “sensitive” in this circumstance. But generally, “sensitive” investigations at FBI are those that investigate reporters, faith leaders, and politicians.
So it seems possible the FBI is not permitting the IG to review precisely the practices he should review.
Which brings me to another matter that is almost entirely redacted.
As I’ve reported repeatedly, one thing the last IG report on Exigent Letters showed is that a number of journalists have had their phone records collected by FBI. In addition, the 2011 DIOG made it acceptable to use NSLs to do so. Here’s the section of the executive summary of this report that describes whether FBI has resolved this issue.
From which I can only assume that FBI is continuing to use NSLs to collect journalist records (if FBI would like to declassify this language to prove me wrong, I welcome their transparency!).
So to sum up:
All that could be badly wrong — much of this information is redacted from both me, and in some cases, from Congress.
But doesn’t it raise some awfully big questions?
Recently I have started blogging occasionally over at Expose Facts — an entity serving whistleblowers and transparency. There’s even a SecureDrop, if you want to drop me secret documents to read!
Things will remain the same over here; I just hope to broaden my readership and support an important cause. I post links here to the more interesting posts over there.
Today, I’ve got a second post on the DOJ IG Report on FBI’s use of National Security Letters. It examines the extent to which FBI and the President’s Intelligence Oversight Board, which reviews legal violations of intelligence agencies, have classified information about FBI’s use of NSLs, even information that had been public in prior DOJ IG reports.
That is, both in the unclassified and the classified reports, FBI and President’ Obama’s oversight board demanded Horowitz hide information that had been released in some form in the 3 earlier reports DOJ’s IG did on NSLs.
FBI or PIAB are hiding:
- What kind of information FBI collects using NSLs
- What kind of violations FBI reports (or doesn’t report) to its overseers
- PIAB’s judgements about FBI’s compliance with NSL statute
This information is, of course, central to Congress and the public’s understanding of whether FBI continues to abuse the NSL statute, as it did for the first 5 years after 9/11 (this report only covers NSL use until 2009; FBI’s more current use remains unexamined).
FBI’s suppression of this information is all the more troublesome given that the USA Freedom Act currently being debated in the Senate addresses some of the FBI’s use of NSLs.
Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?
It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.
Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.
The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.
They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.
Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.
The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.
DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.
And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”
You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?
Nope, neither do I.
Towards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.
Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.
This is why you should not have secret courts.
I get making an aggressive push to authorize dragnet surveillance.
I get mining old and foreign dictionaries to come up with a definition that suits your needs.
But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.
But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.
Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”
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.
In the 26th paragraph of a 32-paragraph article reporting on how FBI will remain terror terror terror under Jim Comey’s watch (albeit, potentially, with a more particularized focus, which would be welcome), this detail appears:
Mr. Comey said he also wanted to apply the lessons learned in fighting terrorism to fighting other crimes. If Congress approves, he plans to move the bureau’s head of intelligence out of the national security division and create a new intelligence branch that will amass information on crimes like fraud in an effort to more quickly identify trends and perpetrators.
I look forward to learning more about this proposal (and we shall see whether Congress permits Comey to make this move, though he is still Congress’ darling). Plus, it’s unclear whether “fraud” means the small-time fraud propagated by local businessmen or whether it’s the kind Jamie Dimon has gotten rich off of.
Still, it’s a much needed idea. While it poses the risk of expanding the use of intrusive intelligence tools, it also might lead us to establishing a better standard for the use of such intelligence.
Remember DOJ’s efforts to placate journalists (rather stunningly, in retrospect, rolled out a month after the first Edward Snowden leaks)?
As I noted at the time, DOJ’s new protections for the press applied not to the act of journalism, but rather to members of the news media. DOJ’s own Domestic Investigations and Operations Guide requires institutional affiliation before they’ll treat someone as a journalist.
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional. [my emphasis]
According to the DOJ, then, you have to get paid (preferably by an institution recognized to be a press) to be afforded heightened First Amendment protection as a journalist.
Except now House Intelligence Chair Mike Rogers wants to criminalize that — one of the main things that warrants you protection by DOJ as a journalist, getting paid — by calling it “fencing stolen material.”
REP. ROGERS: You — there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material — is that a crime?
DIRECTOR JAMES COMEY: Yes, it is.
REP. ROGERS: And would be selling the access of classified material that is stolen from the United States government — would that be a crime?
DIR. COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.
REP. ROGERS: So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?
REP. ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?
DIR. COMEY: I think that’s a harder question because it involves a news-gathering functions — could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice.
REP. ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?
DIR. COMEY: I’m not sure I’m able to answer that question in the abstract.
REP. ROGERS: It’s something we ought to think about, is it not?
DIR. COMEY: Certainly.
So you’re not a journalist (and get no protections) if you don’t get paid. But if you do get paid, you’re fencing stolen property.
I do hope the traditional press recognizes the danger in this stance.
There were a number of questions about security threats to the Sochi Olympics at the Global Threat hearing the other day. One of them provided Jim Comey the opportunity to say this:
National Counterterrorism Center Director Matthew Olsen: So we’re very focused on the problem of terrorism in the run-up to the Olympics. I would add that I traveled to Sochi last December and met with Russian security officials. They understand the threat; they are very focused on this and devoting substantial resources. The biggest issue, from my perspective, is not the games themselves, the venues themselves; there is extensive security at those locations — the sites of the events. The greater threat is to softer targets in the greater Sochi area and in the outskirts, beyond Sochi, where there is a substantial potential for a terrorist attack.
Dianne Feinstein: Thank you very much. Mr. Comey, would you tell us what you can about cooperation between Russia and your organization?
FBI Director Jim Comey: Certainly, Senator. The cooperation between the FSB and the FBI in particular has been steadily improving over the last year. We’ve had exchanges at all levels, particularly in connection with Sochi, including me directly to my counterpart at FSB, and I think that we have a good level of cooperation there. It can always improve; we’re looking for ways to improve it, as are they, but this, as Director Olsen said, remains a big focus of the FBI. [my emphasis]
In the middle of a hearing at which James Clapper railed against Edward Snowden, claiming that counterintelligence threats — by which he largely meant Snowden — presented the second biggest threat to the country, the FBI Director stated that cooperation between his agency and the Russian spy agency has been improving for the last year (I’m guessing he means it has been improving since the Boston attack, because relations were quite chilly before that).
Snowden’s the second biggest threat to this country, and yet our relations with Russia, and specifically with Russia’s spy agency, have been steadily improving over the entire period Snowden has had asylum in Russia.
I don’t pretend to know precisely what that means.
At a minimum, it poses real questions about the unsubstantiated and whispered claims that Snowden has provided Russia great intelligence on NSA’s activities. After all, if Russia was busy exploiting Snowden’s secrets, it presumably would present challenges for this budding new cooperation between the FSB and those investigating Snowden’s leaks.
(The Global Threats report actually raises the case of Jeffrey Paul Delisle, a Canadian intelligence officer who gave Russia Five Eyes secrets for five years, as proof the Russians are soliciting more spies as part of its cyberwar efforts.)
There is, of course, another (remote) possibility: that we worked out a deal with Russia, whereby they’d give Snowden asylum and report back what he had taken. I have no reason to believe Snowden has shared secrets (though don’t doubt Putin will take whatever he can get his hands on), and the thought that Russia would agree to tell us what Snowden got is far-fetched. Still, Putin’s enough of a statist he might do it (and might misinform us along the way). While far-fetched, if that were the case, though, it’d give the US several things: the security in knowing Snowden was in the hands of security forces who would prevent any non-state or weaker states from getting to him, who were also limiting what Snowden could say publicly. Some clue about what Snowden had taken. And a political situation which would help US efforts to propagndize against Snowden.
Alternately, one of the things the FBI has learned as it has worked more closely with the FSB is that Snowden hasn’t shared any secrets with Russia (perhaps, as many have suggested, Russia got enough from Delisle that they would rather use Snowden solely to discomfit us).
I don’t know what it means. But I do find it rather implausible that the FBI would continue to expand cooperation with the FSB even as it extracted NSA’s family jewels from Snowden. Yet that’s the story Snowden’s biggest detractors would like you to believe.
SEN. MIKULSKI: General Clapper, there are 36 different legal opinions.
DIR. CLAPPER: I realize that.
SEN. MIKULSKI: Thirty-six say the program’s constitutional. Judge Leon said it’s not.
Thirty-six “legal opinions” have deemed the dragnet legal and constitutional, its defenders say defensively, over and over again.
But that’s not right — not by a long shot, as ACLU’s Brett Max Kaufman pointed out in a post yesterday. In its report, PCLOB confirmed what I first guessed 4 months ago: the FISA Court never got around to writing an opinion considering the legality or constitutionality of the dragnet until August 29, 2013.
FISC judges, on 33 occasions before then, signed off on the dragnet without bothering to give it comprehensive legal review.
Sure, after the program had been reauthorized 11 times, Reggie Walton considered the more narrow question of whether the program violates the Stored Communications Act (I suspect, but cannot yet prove, that the government presented that question because of concerns raised by DOJ IG Glenn Fine). But until Claire Eagan’s “strange” opinion in August, no judge considered in systematic fashion whether the dragnet was legal or constitutional.
And the thing is, I think FISC judge — now Presiding Judge — Reggie Walton realized around about 2009 what they had done. I think he realized the program didn’t fit the statute.
Consider a key problem with the dragnet – another one I discussed before PCLOB (though I was not the first or only one to do so). The wrong agency is using it.
Section 215 does not authorize the NSA to acquire anything at all. Instead, it permits the FBI to obtain records for use in its own investigations. If our surveillance programs are to be governed by law, this clear congressional determination about which federal agency should obtain these records must be followed.
Section 215 expressly allows only the FBI to acquire records and other tangible things that are relevant to its foreign intelligence and counterterrorism investigations. Its text makes unmistakably clear the connection between this limitation and the overall design of the statute. Applications to the FISA court must be made by the director of the FBI or a subordinate. The records sought must be relevant to an authorized FBI investigation. Records produced in response to an order are to be “made available to,” “obtained” by, and “received by” the FBI. The Attorney General is directed to adopt minimization procedures governing the FBI’s retention and dissemination of the records it obtains pursuant to an order. Before granting a Section 215 application, the FISA court must find that the application enumerates the minimization procedures that the FBI will follow in handling the records it obtains. [my emphasis, footnotes removed]
The Executive convinced the FISA Court, over and over and over, to approve collection for NSA’s use using a law authorizing collection only by FBI.
Which is why I wanted to point out something else Walton cleaned up in 2009, along with watchlists of 3,000 Americans who had not received First Amendment Review. Judge Reggie Walton disappeared the FBI Director.
The structure of all the dragnet orders released so far (save Eagan’s opinion) follow a similar general structure:
- An (unnumbered, unlettered) preamble paragraph describing that the FBI Director made a request
- 3-4 paragraphs measuring the request against the statute, followed by some “wherefore” language
- A number of paragraphs describing the order, consisting of the description of the phone records required, followed by 2 minimization paragraphs, the first pertaining to FBI and,
- The second paragraph introducing minimization procedures for NSA, followed by a larger number of lettered paragraphs describing the treatment of the records and queries (this section got quite long during the 2009 period when Walton was trying to clean up the dragnet and remains longer to this day because of the DOJ oversight Walton required)
An application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, the Court finds that:
1. The Director of the FBI is authorized to make an application for an order requiring the production of any tangible thing for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861 (c)(1)]
2. The tangible things to be produced are all call-detail records or “telephone metadata” created by [the telecoms]. Telephone metadata includes …
3. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12,333 to protect against international terrorism, … [my emphasis]
Here’s how the next order and all (released) following orders start [save the bracketed language, which is unique to this order]:
An verified application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. § 1861, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, [as well as the government's filings in Docket Number BR 08-13 (the prior renewal of the above-captioned matter),] the Court finds that:
1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, …
That is, Walton took out the paragraph — which he indicated in his opinion 3 months earlier derived from the statutory language at 50 U.S.C. § 1861 (c)(1) — pertaining to the FBI Director. The paragraph always fudged the issue anyway, as it doesn’t discuss the FBI Director’s authority to obtain this for the NSA. Nevertheless, Walton seems to have found that discussion unnecessary or unhelpful.
Walton’s March 5, 2009 order and all others since have just 3 statutory paragraphs, which basically say:
Here’s what 50 USC 1861 (c)(1), in its entirety, says:
(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.
And here are two key parts of subsections (a) and (b) — in addition to “relevant” language that has always been included in the dragnet orders.
(a) Application for order; conduct of investigation generally
(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things
(2) shall include—
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
FBI … FBI … FBI.
The language incorporated in 50 USC 1861 (c)(1) that has always been cited as the standard judges must follow emphasizes the FBI repeatedly (PCLOB laid out that fact at length in their analysis of the program). And even Reggie Walton once admitted that fact.
And then, following his lead, FISC stopped mentioning that in its statutory analysis altogether.
Eagan didn’t even consider that language in her “strange” opinion, not even when citing the passages (here, pertaining to minimization) of Section 215 that directly mention the FBI.
Section 215 of the USA PATRIOT Act created a statutory framework, the various parts of which are designed to ensure not only that the government has access to the information it needs for authorized investigations, but also that there are protections and prohibitions in place to safeguard U.S. person information. It requires the government to demonstrate, among other things, that there is “an investigation to obtain foreign intelligence information … to [in this case] protect against international terrorism,” 50 U.S.C. § 1861(a)(1); that investigations of U.S. persons are “not conducted solely upon the basis of activities protected by the first amendment to the Constitution,” id.; that the investigation is “conducted under guidelines approved by the Attorney General under Executive Order 12333,” id. § 1861(a)(2); that there is “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to the investigation, id. § 1861(b)(2)(A);14 that there are adequate minimization procedures “applicable to the retention and dissemination” of the information requested, id. § 1861(b)(2)(B); and, that only the production of such things that could be “obtained with a subpoena duces tecum” or “any other order issued by a court of the United States directing the production of records” may be ordered, id. § 1861(c)(2)(D), see infra Part III.a. (discussing Section 2703(d) of the Stored Communications Act). If the Court determines that the government has met the requirements of Section 215, it shall enter an ex parte order compelling production.
This Court must verify that each statutory provision is satisfied before issuing the requested Orders. For example, even if the Court finds that the records requested are relevant to an investigation, it may not authorize the production if the minimization procedures are insufficient. Under Section 215, minimization procedures are “specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1861(g)(2)(A)
Reggie Walton disappeared the FBI Director as a statutory requirement (he retained that preamble paragraph, the nod to authorized FBI investigations, and the perfunctory paragraph on minimization of data provided from NSA to FBI) on March 5, 2009, and he has never been heard from in discussions of the FISC again.
Now I can imagine someone like Steven Bradbury making an argument that so long as the FBI Director actually signed the application, and so long as the FBI had minimization procedures for the as few as 16 tips they receive from the program in a given year, it was all good to use an FBI statute to let the NSA collect a dragnet potentially incorporating all the phone records of all Americans. I can imagine Bradbury pointing to the passive construction of that “things to be made available” language and suggest so long as there were minimization procedures about FBI receipt somewhere, the fact that the order underlying that passive voice was directed at the telecoms didn’t matter. That would be a patently dishonest argument, but not one I’d put beyond a hack like Bradbury.
The thing is, no one has made it. Not Malcolm Howard in the first order authorizing the dragnet, not DOJ in its request for that order (indeed, as PCLOB pointed out, the application relied heavily on Keith Alexander’s declaration about how the data would be used). The closest anyone has come is the white paper written last year that emphasizes the relevance to FBI investigations.
But no one I know of has affirmatively argued that it’s cool to use an FBI statute for the NSA. In the face of all the evidence that the dragnet has not helped the FBI thwart a single plot — maybe hasn’t even helped the FBI catch one Somali-American donating less than $10,000 to al-Shabaab, as they’ve been crowing for months — FBI Director Jim Comey has stated to Congress that the dragnet is useful to the FBI primarily for agility (though the record doesn’t back Comey’s claim).
Which leaves us with the only conclusion that makes sense given the Executive’s failure to prove it is useful at all: it’s not the FBI that uses it, it’s NSA. They don’t want to tell us how the NSA uses it, in part, because we’ll realize all their reassurances about protections for Americans fall flat for the millions of Americans who are 3 degrees away from a potential suspect.
But they also don’t want to admit that it’s the NSA that uses it, because then it’ll become far more clear how patently illegal this program has been from the start.
Better to just disappear the FBI Director and hope no one starts investigating the disappearance.
In yesterday’s Threat Hearing, James Clapper and John Brennan provided so much news early, I suspect many didn’t stick around to hear the question Angus King posed to Jim Comey. He asked about the significance of the phone dragnet.
SEN. KING: Director Comey, do you have views on the significance of 215? You understand this is not easy for this committee. The public is very skeptical and in order for us to continue to maintain it, we have to be convinced that it is in fact effective and not just something that the intelligence community thinks is something nice to have in their toolkit.
DIR. COMEY: Yeah, I totally understand people’s concerns and questions about them. They’re reasonable questions. I believe it’s a useful tool. For the FBI, its primary value is agility. That is, it allows us to do in minutes what would otherwise take us in hours. And I’ll explain what I mean by that. If a terrorist is identified in the United States or something blows up in the United States, we want to understand, OK, is there a network that we’re facing here?
And we take any telephone numbers connected to that terrorist, to that attack. And what I would do in the absence of 215 is use the legal process that we use every day, either grand jury subpoenas or national security letters, and by subpoenaing each of the telephone companies I would assemble a picture of whether there’s a network connected to that terrorist. That would take hours.
What this tool allows us to do is do that in minutes. Now, in most circumstances, the difference between hours and minutes isn’t going to be material except when it matters most. And so it’s a useful tool to me because of the agility it offers. [my emphasis]
Comey prefaced his entire answer by making it clear he was only addressing the way the FBI uses the dragnet. That suggests he was bracketing off his answer from possible other uses, notably by NSA.
If the FBI Director brackets off such an answer after 7 months of NSA pointing to FBI’s efforts to thwart plots, to suggest his Agency’s use may not be the most important use of the dragnet, can we stop talking about plots thwarted and get an explanation what role the dragnet really plays?
That said, it’s worth comparing Comey’s answer to what the PCLOB said about FBI’s use of the dragnet. Because in the 5 cases the government cited claiming the dragnet found particular leads (the exception is Basaaly Moalin, which PCLOB said might have been found via active investigations FBI already had going), FBI found the same leads via other means (and the implication for some of these is that FBI found those other leads first).
Operation WiFi: Those numbers simply mirrored information about telephone connections that the FBI developed independently using other authorities.
David Headley: Those numbers, however, only corroborated data about telephone calls that the FBI obtained independently through other authorities.
3 other cases: But in all three cases, that information simply mirrored or corroborated intelligence that the FBI obtained independently through other means.
That is, usually the dragnet isn’t even a matter of agility. It’s a matter of redundancy.
It seems Jim Comey, sharing the dais with several colleagues who’ve already torched their credibility, had no interest in pretending the dragnet is primarily about the investigations of his Agency.
Perhaps the rest of the us can dispense with that myth too now?