In a last minute amendment to the Intelligence Authorization, the House and Senate passed a new section basically imposing minimization procedures for EO 12333 or other intelligence collection not obtained by court order. (See Section 309)
(A) Application.–The procedures required by paragraph (1) shall apply to any intelligence collection activity not otherwise authorized by court order (including an order or certification issued by a court established under subsection (a) or (b) of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803)), subpoena, or similar legal process that is reasonably anticipated to result in the acquisition of a covered communication to or from a United States person and shall permit the acquisition, retention, and dissemination of covered communications subject to the limitation in subparagraph (B).
(B) Limitation on retention.–A covered communication shall not be retained in excess of 5 years, unless–
(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence;
(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency;
(iii) the communication is enciphered or reasonably believed to have a secret meaning;
(iv) all parties to the communication are reasonably believed to be non-United States persons;
(v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and
the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the
date such retention is extended under this clause;
(vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional
intelligence committees on an annual basis; or
(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing–
(I) the reasons extended retention is necessary to protect the national security of the United States; (II) the duration for which the head of the element is authorizing retention;
(III) the particular information to be retained; and
(IV) the measures the element ofthe intelligence community is taking toprotect the privacy interests of UnitedStates persons or persons locatedinside the United States.
The language seems to be related to — but more comprehensive than — language included in the RuppRoge bill earlier this year. That, in turn, seemed to arise out of concerns raised by PCLOB that some unnamed agencies had not revised their minimization procedures in the entire life of EO 12333.
Whereas that earlier passage had required what I’ll call Reagan deadenders (since they haven’t updated their procedures since him) to come up with procedures, this section effectively imposes minimization procedures similar to, though not identical, to what the NSA uses: 5 year retention except for a number of reporting requirements to Congress.
I suspect these are an improvement over whatever the deadenders have been using But as Justin Amash wrote in an unsuccessful letter trying to get colleagues to oppose the intelligence authorization because of the late addition, the section provides affirmative basis for agencies to share US person communications whereas none had existed.
Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.
To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.
In exchange for the data retention requirements that the executive already follows, Sec. 309 provides a novel statutory basis for the executive branch’s capture and use of Americans’ private communications. The Senate inserted the provision into the intelligence reauthorization bill late last night.
Which raises the question of what the emergency was to have both houses of Congress push this through at the last minute? Back in March, after all, RuppRoge was happy to let the agencies do this on normal legislative time.
I can think of several possibilities:
Or maybe this is meant to provide the patina of legality to some other dragnet we don’t yet know about.
Still, I find it an interesting little emergency the intelligence committees seem to want to address.
As expected, last night Justin Amash held off a challenge from a corporatist Republican, Brian Ellis (though the margin was closer than polls predicted). What has the local punditry surprised, however, is Amash’s victory speech, where he attacked Ellis and former Congressman Crazy Pete Hoekstra, who endorsed Ellis.
AMASH VICTORY SPEECH: U.S. Rep. Justin Amash’s win over 3rd District GOP primary challenger Brian Ellis wasn’t too surprising, but his victory speech was. Rather than simply celebrate, Amash reportedly refused to answer a concession phone call from Ellis and then unloaded on the businessman, who had run a TV ad calling him “Al Qaeda’s best friend” in Congress. “I ran for office to stop people like you,” Amash said to Ellis, who was not present. He also ripped former U.S. Rep. Pete Hoekstra, who backed Ellis in a separate commercial. “I’m glad we can hand you one more loss before you fade into total obscurity and irrelevance,” he said of Hoekstra. (more >>)
I get that you’re supposed to give a happy unity speech after you win (though I personally don’t much care if MI Republicans rip themselves apart, and MI’s Republican Congressmen already broke protocol by offering no support to Amash and in Mike Rogers’ case giving big support for Ellis). But not only is Crazy Pete a disgrace, Ellis did try to gain traction by smearing Amash.
From the coverage, I think Amash was most pissed that Ellis and Hoekstra treated a vote Amash refused to cast to defund Planned Parenthood on constitutional grounds as a pro-choice vote.
But in an interview with Fox, Amash also called Ellis’ ad rather famously repeating a claim he’s al Qaeda’s best friend in Congress disgusting.
“I’m an Arab-American, and he has the audacity to say I’m Al-Queda’s best friend in congress. That’s pretty disgusting.”
This ad, which played (among other prominent ad buys) during the World Cup, really pissed me off.
Not only for the treatment of Gitmo as anything but a terrible moneypit, all in the hopes of maintaining some extra-legal space to sustain the notion of war rather than law. But especially for the notion that anything but lock-step support for counterproductive counterterrorism policies makes you a friend of al Qaeda.
And yes, especially the suggestion that one of Congress’ only Arab-American members (Amash’s parents are Palestinian and Syrian Christians) might therefore be an Islamic terrorist.
For 12 years — ever since Saxby Chambliss used a similar technique to take out Max Cleland — our political culture has tolerated ads that invoke terror to short-circuit any real political debate about how we fight it. Those ads get treated as business as usual. Win or lose the race and then make nice with your opponent.
That such ads are still (were ever!) considered acceptable political discourse — that Amash, and not Ellis, is getting the scolds — damns our political system. By treating any debate over the efficacy of counterterrorism policy as terrorism itself, we foreclose potentially far more effective ways of keeping the country safe and potentially far smarter ways to spend limited resources. (Crazy Pete, for example, fear-mongered about moving Gitmo detainees to a prison threatened with closure in Michigan, thereby losing Michigan jobs, but also committing the US to continue to spend exorbitant amounts to keep our gulag open.)
At some point, it needs to be okay to call out such bullshit. Because until then, we’ll never be able to actually debate the best way to keep the country safe.
If you’ve spent much time in political party conventions, you likely know that the resolution process largely serves as an opportunity for active members to vent. While party resolutions might represent where the ideological base of the party is, nothing prevents the elected leaders of the party to blow off resolutions (though at times resolutions are deemed toxic enough for leaders to undermine by parliamentary stunts).
Which is why I find the response to the RNC’s resolution renouncing the NSA’s “Surveillance Prorgam” (it mentions PRISM and, implicitly, the phone dragnet) so interesting.
There are responses like this, from Kevin Drum, who spins it as pure politics.
I get that politics is politics, and the grass always looks browner when the other party occupies the Oval Office. And there are plenty of liberals who are less outraged by this program today than they were back when George Bush and Dick Cheney were in charge of it.
But holy cow! The RNC! Officially condemning a national security program that was designedby Republicans to fight terrorism!
Benjy Sarlin, in the account Drum linked, got the politics more clear, reading this, in part, as the influence of libertarians who largely gained ascendance as part of a backlash against Bush policies or at least failures.
But the resolution also is a sign of the increasing influence of the libertarian wing of the party, especially supporters of Ron Paul and his son, Rand Paul, who have made government overreach in pursuit of terrorists a top issue. Both Orrock and fellow Nevada Committeeman James Smack, who presented the resolution on her behalf, supported the elder Paul’s presidential campaign.
But I also think there’s more to it.
There is certainly a great deal of opportunism here (note, Democrats’ utter disdain for tech companies’ concerns about the dragnet make this a monetary, as well as political opportunity for the GOP, one already bearing fruit). And while the GOP establishment is still cautiously trying to regain control over the Tea Party forces that it once encouraged, there has also been a slow change in traditional conservatives’ stance, too, which I measure through Amash-Conyers opponent Bob Goodlatte’s changing position.
Goodlatte has issued three statements in recent weeks (January 9, January 17, and January 23) calling for reform (including more civil liberties protections and attention to tech companies’ concerns) and more transparency. In the most interesting of the statements, Goodlatte suggested that if Obama wanted to keep the dragnet he’d have to explain what purpose it was really serving and then argue that that purpose
Over the course of the past several months, I have urged President Obama to bring more transparency to the National Security Agency’s intelligence-gathering programs in order to regain the trust of the American people. In particular, if the President believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security. The President has unique information about the merits of these programs and the extent of their usefulness. This information is critical to informing Congress on how far to go in reforming the programs. Americans’ civil liberties are at stake in this debate. [my emphasis]
As I’ve been pointing out for some time, no dragnet defenders have yet to explain what purpose it really serves, and I’m struck that Goodlatte seems to suggest the same. Note, too, that Goodlatte was among the 6 Representatives who attended Bruce Schneier’s briefing on what NSA was really doing, along with leading GOP dragnet opponents Jim Sensenbrenner and Justin Amash and 3 Democrats.
I would suggest to Democrats who see this resolution exclusively as an overly cynical attack on Obama there may, in fact, be things that could explain why Republicans specifically or reasonable Americans more generally might have good reason to oppose the dragnet.
Now back to the resolution. As Sarlin notes, “Not a single member rose to object or call for further debate, as occurred for other resolutions.” (I like to think that had Michigan’s retrograde Dave Agema been able to participate rather than fending off calls for his resignation, he might have spoken up for authoritarianism.)
Instead of opposition from the Republican Party then, came first this quote to Sarlin,
“I think it probably does reflect the views of many of the people who really want to turn out the vote and who are viewing the world through the prism of the next election,” Stewart Baker, a former Bush-era Homeland Security official, told msnbc in an email. “It’s a widespread view among Republicans, but I think the ones that know this institution best and for whom national security is a high priority don’t share this view.”
Then what Eli Lake reports as a letter (Lake doesn’t say to whom) from just one elected official — KS Representative and House Intelligence Committee member Mike Pompeo — and 7 Bush officials (including Baker) blasting the resolution. Part of the letter, apparently, serves to waggle National Security seniority, as Baker already had.
Their letter says: “The Republican National Committee plays a vital role in political campaigns, but it has relatively little expertise in national security.”
And part of it serves to correct a technical inaccuracy that may not be one.
In particular the letter takes issue with the resolution’s claim that the NSA’s PRISM program “monitors searching habits of virtually every American on the internet.”
“In fact, there is no program that monitors the searches of all Americans,” the letter says. “And what has become known as the PRISM program is not aimed at collecting the communications of Americans. It is targeted at the international communications of foreign persons located outside the United States and is precisely the type of foreign-targeted surveillance that Congress approved in 2008 and 2012 when it enacted and reauthorized amendments to the Foreign Intelligence Surveillance Act.”
At issue is the language of the resolution, which starts by discussing PRISM, but then talks about what is clearly the phone (though it would encompass the Internet) dragnet, but then explicitly returns to both, by name of the authority that govern them.
WHEREAS, the secret surveillance program called PRISM targets, among other things, the surveillance of U.S. citizens on a vast scale and monitors searching habits of virtually every American on the internet;
WHEREAS, this dragnet program is, as far as we know, the largest surveillance effort ever launched by a democratic government against its own citizens, consisting of the mass acquisition of Americans’ call details encompassing all wireless and landline subscribers of the country’s three largest phone companies.
RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;
RESOLVED, the Republican National Committee encourages Republican lawmakers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying and the committee should create specific recommendations for legal and regulatory reform ot end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance; [my emphasis]
7 Bush officials and 1 HPSCI member (but not, oddly enough, the always boisterous Mike Rogers) have weighed in to say that the NSA doesn’t monitor the searches of some Americans and then trots out the tired “targeted at foreign persons” line, without addressing the question of blanket surveillance of communications more generally.
Sarlin, in his piece, similarly retreats to “targeting” claptrap, claiming only that “lawmakers have accused the agency of overreaching.”
Somehow both the Bush dead-enders and Sarlin neglect to mention backdoor searches, which allow the NSA to use metadata collected under a range of dragnets to obtain US content without even Reasonable Articulable Suspicion.
And while it’s not all that surprising that Sarlin chose not to discuss how NSA can get domestic content, as I will show in a follow-up post the collection of dead-enders (Lake fleshed out the list here) who weighed in to deny that the NSA dragnet gets US person content is particularly instructive, as I’ll show in a follow-up post.
6 Congresspersons and a security researcher walk into an unsecure room. … And that’s the best briefing they can get on some of the things NSA might be doing.
This morning I spent an hour in a closed room with six Members of Congress: Rep. Logfren, Rep. Sensenbrenner, Rep. [Bobby] Scott, Rep. Goodlate, Rep [Mike] Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn’t forthcoming about their activities, and they wanted me — as someone with access to the Snowden documents — to explain to them what the NSA was doing. Of course I’m not going to give details on the meeting, except to say that it was candid and interesting. And that it’s extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.
I’m as intrigued by the make-up of the group as I am by the fact they needed to do this.
Schneier makes it clear that Lofgren — who is not only a strong supporter of civil liberties, but also happens to represent Silicon Valley — set up the briefing. In addition to her House Judiciary Committee colleagues Sensenbrenner, Scott, and Goodlatte, she invited Amash (who’s not on the Committee but a loud defender of civil liberties — thanks, my Rep!), and N and E Bay Area
Republican Democratic colleague Mike Thompson, who’s not a member of the Committee either, but is a member of the Intelligence Committee.
As I’ve noted, Goodlatte is not a named sponsor of USA Freedom; neither is Thompson (though Schneier describes them as all people who want to “rein in the NSA”).
And yet these are the individuals whom Lofgren chose to bring to this briefing.
Schneier, of course, is not focused on the actual spying that NSA is doing, but on the corruption of encryption, a threat to the business model of Lofgren’s district. [See Saul’s well-take correction here.]
Also note, while I’ve got real worries about some opponents to reining in the NSA in the Senate, I do think people are not considering the significance of the House Judiciary Chair, who voted against Amash-Conyers, increasingly complaining about the NSA.
I’m not sure what the best way to stop the NSA from making us all less safe (especially since NSA has apparently not even told HPSCI members what they’re doing). But I gather than Lofgren is trying to figure out a way to do so.
Bob Goodlatte, the Chair of the House Judiciary Committee, voted against the Amash-Conyers Amendment that would have defunded the phone dragnet. Nor is he a named cosponsor of the USA Freedom Act, the Leahy-Sensenbrenner bill that would reform the dragnet.
Which is why it is particularly notable that he’s the one member of Congress cited by name in a story reporting on skepticism that Obama will actually reform the NSA.
President Obama met with hand-picked lawmakers at the White House on Thursday to discuss the National Security Agency’s controversial spying programs, the main event of a week full of meetings at the White House focusing on potential reforms for the maligned federal agency.
At least some of the lawmakers left the meeting unconvinced that the president is going to do enough to curtail the NSA’s activities. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said “it’s increasingly clear that we need to take legislative action to reform” the NSA’s intelligence gathering.
“If the president believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security,” Goodlatte said in a statement. “Americans’ civil liberties are at stake in this debate.”
If the President has not yet been able to convince Goodlatte the phone dragnet is necessary, if Goodlatte walks out of meeting with the President calling to legislatively roll back the phone dragnet, it might just have a shot at passing.
Update: Here’s Goodlatte’s full statement.
Over the course of the past several months, I have urged President Obama to bring more transparency to the National Security Agency’s intelligence-gathering programs in order to regain the trust of the American people. In particular, if the President believes we need a bulk collection program of telephone data, then he needs to break his silence and clearly explain to the American people why it is needed for our national security. The President has unique information about the merits of these programs and the extent of their usefulness. This information is critical to informing Congress on how far to go in reforming the programs. Americans’ civil liberties are at stake in this debate.
With each new revelation of the scope of these programs, it’s increasingly clear that we need to take legislative action to reform some of our nation’s intelligence-gathering programs to ensure that they adequately protect Americans’ civil liberties and operate in a sensible manner. We also need to ensure the laws are clear so that the U.S. tech industry is not disadvantaged vis-à-vis their foreign competitors. The House Judiciary Committee, which has primary jurisdiction over the legal framework of these programs, has conducted aggressive oversight on this issue and will be instrumental to reforming the Foreign Intelligence Surveillance Act. I am committed to working with members of Congress and Senators from both political parties, House leaders, and President Obama to ensure our nation’s intelligence collection programs include real protections for Americans’ civil liberties, robust oversight, and additional transparency. [my emphasis]
I know, I know. I’ve promised my substantive post on David Kris’ paper on the phone and Internet dragnets.
I know, I know. My repeated harping on the failure to inform the 2011 House freshmen about the dragnet is getting tedious.
But Kris dedicated 16 pages of his 67 page paper to arguing that the statutory requirements for briefing Congress about the dragnets (which Kris says require only Intelligence and Judiciary Committee briefing) have been met. He ultimately makes a half-hearted attempt to make the same argument Claire Eagan did about Congress adopting judicial interpretation. And he lays out the fatally weak case Ben Wittes has in the past to justify his wails of NAKED!
In doing so, Kris claims that, “all Members were offered briefings on the FISC’s interpretation.”
The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. There is a basic principle of statutory construction that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change,”208 as it did repeatedly with the tangible things provision.
Of course, it would be ridiculous to presume that Congress adopted a classified interpretation of a law of which it could not have been aware. As described above, however, the historical record shows that many Members were aware, and that all Members were offered briefings on the FISC’s interpretation, even if they did not attend the briefings.
And yet, in all those 16 pages, he offers not one whit of evidence that the 93 members of Congress elected in 2010 (save the 7 on the Intelligence and Judiciary Committees) could have learned about the program save two briefings offered in May 2011.
Unless you count this argument, which suffers from a basic logic problem.
In an unclassified report published in March 2011, the Senate Intelligence Committee emphasized that it had offered a briefing to all Members of Congress concerning the bulk telephony metadata collection:
Prior to the extension of the expiring FISA provisions in February 2010, the Committee acted to bring to the attention of the entire membership of the Senate important information related to the nature and significance of the FISA collection authority subject to sunset. Chairman Feinstein and Vice Chairman Bond notified their colleagues that the Attorney General and the DNI had provided a classified paper on intelligence collection made possible under the Act and that the Committee was providing a secure setting where the classified paper could be reviewed by any Senator prior to the vote on passage of what became Public Law 111–141 to extend FISA sunsets. [my bold]
The entire membership of the Senate, after all, is not the same thing as “all Members of Congress.”
Ultimately, though, Kris concedes (citing just the white paper, and not citing me, the Guardian, any other reporting, or Justin Amash’s public statements to the effect) that just maybe this information wasn’t passed on in 2011 — but don’t worry, the Executive did its job!
Although the House Intelligence Committee did notify Members of the House of the classified documents and briefings in 2010 (when it was led by Chairman Sylvestre Reyes), it may not have done so in 2011 (when it was led by Chairman Mike Rogers). See White Paper at 18 n.13.
Regardless of any intracongressional issues in 2011, as a matter of inter-branch relations, it is clear that the Executive Branch provided the materials with the intent that they be made available to all Members of Congress, as they had been in 2009.
Now, Kris is a much better lawyer than the flunkies who wrote the Administration’s far weaker White Paper on Section 215, and his argument here betrays not only that, but, I suspect, a hint that he realizes the flaw in his argument.
Notice in his claim that “all Members were offered briefings on the FISC’s interpretation,” he doesn’t argue all members got the Executive Branch notices on the program. He doesn’t argue that all members got briefed on the content on the notices. Rather, he claims only that they were offered briefings on the FISC’s interpretation.
Garance Franke-Ruta transcribes Justin Amash telling a remarkable story about another Mike Rogers’ attempt, back in August, to prevent elected representatives of American citizens from learning about details of the dragnet. After multiple tries, one of Amash’s colleagues finally won a game of 20 Questions with intelligence briefers.
And to show you how silly this whole thing gets, I had a colleague, one of my — I won’t say his name here, but he went to a number of classified briefings. And he asked a question and he never got a satisfactory answer. So he would just revise the question from briefing to briefing. By the time he got to to the third or fourth briefing he asked it in just the right way. He had figured out how to ask it in exactly the right way to get the answer he needed and of course, then they said, “Oh, you caught us. Yeah, we do do that.” Then we said, “Can you provide us with some more information?” and they said, “We’ll check, we’ll see if we can provide you with more information. We’ll see if we can provide you with a document” about this thing that he discovered.
And so we left that briefing and we said, “OK, we’re going to see something very interesting here.”
So when the Intelligence Community passed on this document to Intelligence Committee Chair Rogers to share with the victor of this particular game of 20 Questions and others, here’s how he distributed it. On August 3, he announced it would be available for 3 hours on August 4, on a Friday (when many members would already have left). He announced it on what Amash describes as a kind of spam folder.
They sent it through the “Dear Colleague” system. This is a system that, it’s almost like a spam folder, frankly. Continue reading
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In superb news, the FISA Court has agreed to release to ACLU whatever Section 215 opinions are not already covered by a 2011 FOIA suit ACLU filed in Southern District of New York.
In an important decision, the Foreign Intelligence Surveillance Court ordered the government to review for release the court’s opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act. The ruling is on a motion filed by the American Civil Liberties Union, the ACLU of the Nation’s Capital, and Yale Law School’s Media Freedom and Access Information Clinic. Section 215, which authorizes the government to obtain “any tangible things” relevant to foreign-intelligence or terrorism investigations, is the claimed legal basis for the NSA’s mass phone records collection program.
“We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” said Alex Abdo, staff attorney with the ACLU National Security Project. “For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.”
The decision was based on a determination that, since ACLU is so central in these debates, it has standing to make such a request.
The Court ordinarily would not look beyond information presented by the parties to find that a claimant has Article III standing. In this case, however, the ACLU’s active participation in the legislative and public debates about the proper scope of Section 215 and the advisability of amending that provision is obvious from the public record and not reasonably in dispute. 11 Nor is it disputed that access to the Section 215 Opinions would assist the ACLU in that debate. The Court therefore concludes that the ACLU has satisfied that requirement. See, Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 579 (6th Cir. 2012). Accordingly, the Court finds that the withholding from the ACLU of the Section 215 Opinions constitutes a concrete and particularized injury in fact to the ACLU for purposes of Article III standing.
11 See e.g., Michelle Richardson, Legislative Counsel, ACLU Washington Legislative Office, Misdirection: The House Intelligence Committee’s Misleading Patriot Act Talking Points (June 20, 2013) (https://www.aclu.org/blog/national-security/misdirection-house-intelligencecommittees-misleading-patriot-act-talking); Testimony of Jameel Jaffer, Deputy Legal Director of the ACLU Foundation, and Laura W. Murphy, Director, Washington Legislative Office, ACLU, before the Senate Judiciary Committee Hearing on Strengthening Privacy Rights and National Security:
In truth, after Monday’s document dump, this decision may be more about precedent than expanded releases. Because it is limited to substantive decisions on Section 215 — and wouldn’t include every time a judge pulls more hair out upon being informed of yet another “violation” — there may not be many more decisions to release (unless, as I have wondered, there have been significant violations since 2009).
But there is another part of this decision that may be even more important, from the standpoint of precedent. It gives this brief nod to the amici, calling out the Members of Congress specifically (the other amici were journalism organizations, which, like the third party with ACLU, Media Freedom and Information Access Clinic, might have been denied standing), for its claim to standing.
Assuming that there are such Section 215 Opinions that are not at issue in the FOIA litigation, movants and amici have presented several substantial reasons why the public interest might be served by their publication.
Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities.
Remember, the Congressional amici argued they can’t do their job without being able to discuss public FISC opinions.
Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. Continue reading
Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?
A — To the FBI’s knowledge, those authorities have not been abused.
That exchange is, according to DOJ’s Congressional Affairs Office, the level of detail offered up at a May 13, 2011 briefing of the House Republican Caucus regarding the PATRIOT Act provisions the House would vote to reauthorize less than two weeks later.
The questioner — who is not identified — may have been talking about comments Russ Feingold made way back on October 1, 2009, as part of the previous reauthorization of the PATRIOT Act (remember, by this point, Feingold was no longer in the Senate). Here are the things Feingold said about Section 215 in that Senate Judiciary Committee markup.
I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today.
Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.
I want to specifically disagree with Senator Kyle’s [sic] statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.
Given the context, it is unclear whether Feingold referred to use of Section 215 for things they shouldn’t have, use of it to authorize bulk collection generally, or in the compliance issues identified in 2009 on which the Administration had recently briefed the Intelligence Committee. But his suggestion that the Senate Judiciary Committee was getting less detailed briefings than the Senate Intelligence Committee at that point is consistent with DOJ’s 2009 notice to Congress on the dragnet, which said, “The [compliance] incidents, and the Court’s responses, were also reported to the Intelligence Committees in great detail,” with no mention of similarly detailed briefings to SJC (the 2011 letter indicates that by that point SJC was getting detailed briefings as well). This, in turn, suggests he was referring to dragnet-related violations.
Regardless of what Feingold meant, though, he tied misuse very closely to the secret use of Section 215 to conduct dragnet collection of all Americans’ phone records. Feingold’s other public statements about Section 215 focus even more closely on the secret dragnet application of it.
In other words, this appears to have been a question attempting to get at the secret application of the PATRIOT Act that Feingold, along with Ron Wyden and people like Jerry Nadler, had been warning about. This appears to have been an attempt to learn about a topic that — in 2009, at least — DOJ had “agree[d] that it is important that all Members of Congress have access to information about this program” (DOJ didn’t include such blather in its 2011 notice).
Exactly 100 days before the briefing at which this question was asked, DOJ had sent House Intelligence Chair Mike Rogers (who appears to have convened this briefing) a letter noting, “In 2009, a number of technical compliance problems and human implementation errors in these two bulk collection programs were discovered as a result of Department of Justice (DOJ) reviews and internal NSA oversight.”
Yet in response to a query clearly designed to elicit both the existence of the dragnet program and details on problems associated with it, FBI Director Robert Mueller and then-General Counsel Valerie Caproni (and/or whatever staffers were with them) said, to the Bureau’s knowledge, there had been no abuses. Perhaps, then, as now, they’re relying on the claim that none of these compliance issues were willful — the letter said they weren’t intentional or bad-faith — to avoid telling members of Congress about problems with the program.
Remember, this is one of the (and may have been the only) briefings that Mike Rogers now claims provided adequate substitute for letting House members know about the letter describing the dragnet and the compliance problems associated with it. Rogers’ House Intelligence spokesperson, Susan Phalen, has claimed those briefings “not only covered all of the material in the letter but also provided much more detail.” (As far as I’ve been able to tell from the FOIA production to the ACLU, there was no similar briefing for the Democratic caucus, though FOIA production tends to be incomplete; one Democratic Congressman, Hansen Clarke, attended the Republican briefing.)
And DOJ’s own records of the briefing make it clear that when someone tried, however inartfully, to learn about the program, Mueller and Caproni obfuscated about the compliance issues and possibly the existence of the dragnet itself.
This is a concrete example of what both Justin Amash and Ron Wyden have described as a game of 20 questions briefers play in these briefings. The questioner raised one of the few public hints about the dragnet program to ask the FBI about it, and the FBI responded in a manner very similar to the way James Clapper did in March, when he lied to the SSCI.
Now, we don’t know what remains behind the redactions in the briefing, but there is one other piece of evidence that this briefing, at least, didn’t even touch on the dragnet. If you look at all 5 closed briefings turned over in production to ACLU, two — a February 28, 2011 briefing for SJC and a March 17, 2011 briefing for the House Intelligence Committee — were deemed classified “per OGA letter dated 4/26/2012.” The acronym “Other Government Agency” is usually used to refer to CIA, but in this context, where we now know NSA played a central role but revealing that role last year would have disclosed significant new details about the secret application of Section 215, it may well refer to NSA. Those briefings also redacted the identities of some briefers which, again, may be classified to hide the NSA’s role in this program.
If all this speculation is correct, then it means there was no mention of the NSA in the briefing for the Republican caucus. If there was no mention of NSA, then they really couldn’t have explained the program (both the 2009 and 2011 notices make extensive reference to the NSA).
In any case, what remains unredacted is quite clear. Someone at that briefing — the briefing that Mike Rogers’ staffer claims offered more information than had been provided in the DOJ letter — tried to learn about problems with the secret program. And they got stonewalled in response.
Was the person who asked this question and got an incomplete answer one of the 65 people who would go on to reauthorize the PATRIOT Act having had no way of learning about the program and its compliance problems?
Congratulations to the WaPo which is catching up to what I first reported here, that Mike Rogers didn’t tell House Members about a notice of the PATRIOT Act dragnet programs before the vote. (Note: WaPo makes an error when it claims Congress got the previous notice in 2009; Silvestre Reyes and Dianne Feinstein sat on that letter for 2 months after they got it.)
Sadly for Mike Rogers, his excuses are getting stupider.
Admittedly, his past excuses were pretty stupid. In that version, the House Intelligence Committee suggested that having four briefings (for Republicans! only?!) in the last several months made up for not providing notice back in 2011.
The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country.
But in this version, House Intelligence Committee spokesperson Susan Phalen claims providing notice of the need to be informed is a side issue.
A spokeswoman for the House committee, Susan Phalen, declined to say whether the panel had voted to withhold the letter or if the decision was made by Chairman Mike Rogers (R-Mich.).
“Because the letter by itself did not fully explain the programs, the Committee offered classified briefings, open to all Members of Congress, that not only covered all of the material in the letter but also provided much more detail in an interactive format with briefers available to fully answer any Members’ questions,” Phalen wrote in an e-mail. “The discussion of the letter not being distributed is a side issue intended to give the false impression that Congress was denied information. That is not the case.” [my emphasis]
Remember, what (according to the White Paper) Rogers did not do was write a letter telling Members of Congress there was an issue they might want to learn about. Dianne Feinstein sent a letter, dated February 8, 2011, telling colleagues they could come read the letter from the Administration, dated February 2, 2011. According to the White Paper, Mike Rogers sent no such letter — not to tell Congressmen there was a letter, not to tell them what the briefings they held instead were about. So the briefings were pointless, because without notice of them, no one would attend.
That’s not a “side issue.” That goes to the central issue of whether 65 of the yes votes for the PATRIOT Act had had adequate notice what they were voting for.
At this point, the House Intelligence Committee is not even trying to deny that. The only question remaining is whether Rogers provided no notice on his own, with the consent of the committee, or at the behest of the Administration that gave them the letter in the first place.