Tag Archives: Section 215

John Brennan Refuses to Deny the Government Collects US Person Data with No Predicate

By:  Friday February 15, 2013 3:45 pm

John Brennan pointedly refused to answer Mark Udall’s question about whether the government collects information on Americans without a predicate.

In 2008, you stated, “I would argue the government needs to have access to only those nuggets of information that have some kind of predicate. That way the government can touch it and pull back only that which is related.” You also stated that the issue needed to be discussed, “not to the point of revealing sources and methods and giving the potential terrorists out there insights into our capability – but to make sure there is a general understanding and consensus that these initiatives, collections, capabilities, and techniques comport with American values and are appropriately adjusted to deal with the threat we face.” Do you believe the U.S. government currently has access to only nuggets of information that have some kind of predicate? Do you believe that the public has adequate information on this topic?

I believe your first question is referencing statements I made about the need to balance security, privacy, and civil liberty interests in connection with the then ongoing public debate over changes to the Foreign Intelligence Surveillance Act. With respect to FISA, this Administration has worked hard to ensure that any electronic surveillance that targets the American people is subject to judicial review through the Foreign Intelligence Surveillance Court to ensure, among other things, that such surveillance complies with the Constitution, and I strongly supported these efforts. I believe it is important that the Judicial Branch act as a check on the Executive Branch to ensure there is an adequate factual predicate to conduct lawful electronic surveillance that targets the American people. I have also supported – and will continue to support – the Administration’s efforts to ensure that Congress is kept informed of our surveillance practices and processes.

Moreover, the Act provides the process and procedures the Government must follow to undertake surveillance, as well as the role the Judicial Branch and the Congress play in that process. As I have stated publicly, I support as much transparency as possible on our counterterrorism efforts, consistent with our obligation to protect sources and methods. Thus, to the extent we could discuss with the public some of the factual predicates that have been deemed by courts as sufficient to justify surveillance, I would support doing so. Indeed I do believe, as I said in my September 2011 speech at Harvard Law School that an “open and transparent government” is one of the values our democratic society expects and demands. [my emphasis]

As a threshold matter, Brennan is addressing underlying predicates only with regards to the FISA Amendments Act, not to Section 215, which uses the relevance standard to collect information — from acetone and hydrogen peroxide purposes, probably to geolocation — of totally innocent Americans.

But even so, this answer not only doesn’t answer Udall’s question — didn’t you once believe that we should only collect intelligence for which there is a predicate so we don’t conduct fishing expeditions — but it points to the inadequate role of the FISA Court in limiting who the US can spy on.

I guess John Brennan has become a fan of fishing expeditions into US person data.

In any case, unlike Lisa Monaco, Brennan isn’t going to promise to release the secret law.

In 2008, you stated that it was important that there be a public airing, including public congressional hearings, related to the predicate for the surveillance of U.S. persons. Do you believe there is more on this topic that could be declassified?

[snip]

And while I am not aware of any particular information on this topic that could be declassified, I do believe any such information should be disclosed to the extent that such a disclosure could be done consistent with our national security.


DOJ: We Can’t Tell Which Secret Application of Section 215 Prevents Us From Telling You How You’re Surveilled

By:  Friday February 1, 2013 11:29 am

As Mike Scarcella reported yesterday, the government has moved for summary judgment in an Electronic Privacy Information Center FOIA suit for details on the government’s investigation into WikiLeaks. EPIC first FOIAed these materials in June 2011. After receiving nothing, they sued last January.

The government’s motion and associated declarations would be worth close analysis in any case. All the more so, though, in light of the possibility that the government conducted a fishing expedition into WikiLeaks as part of its Aaron Swartz investigation, almost certainly using PATRIOT Act investigative techniques. The government’s documents strongly suggest they’re collecting intelligence on Americans, all justified and hidden by their never ending quest to find some excuse to throw Julian Assange in jail.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

At a general level, the government has exempted what files it has under a 7(A) (ongoing investigation) exemption, while also invoking 1 (classified information), 3 (protected by statute), 5 (privileged document), 6 (privacy), 7(C) (investigative privacy), 7(D) (confidential source, which can include private companies like Visa and Google), 7(E) (investigative techniques), and 7(F) (endanger life or property of someone) exemptions.

No one will say what secret law they’re using to surveil Americans

But I’m most interested in how all three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

By investigating a publisher as a spy, DOJ gets access to PATRIOT Act powers, including Section 215

There’s a very very large chance that the statute in question is Section 215 of the PATRIOT Act (or some other national security administrative subpoena). After all, the FOIA asked whether DOJ had collected business records on WikiLeaks supporters, so it is not unreasonable to assume that DOJ used the business records provision to do so.

Moreover, the submissions make it very clear that the investigation would have the national security nexus to do so. While the motion itself just cites a Hillary Clinton comment to justify its invocation of national security, both the FBI and the NSD declarations make it clear this is being conducted as an Espionage investigation by DOJ counterintelligence people, which — as I’ve been repeating for over two years – gets you the full PATRIOT Act toolbox of investigative approaches.

Media outlets take note: The government is, in fact, investigating a publisher as a spy. You could be next.

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It’s Hard to Summarize Opinions Pertaining to Two Purportedly Unrelated Laws

By:  Tuesday January 8, 2013 5:50 pm

Steven Aftergood relays the explanation of a senior intelligence official as to why the intelligence community can’t release even a teensy little bit of the FISA Court’s classified opinions.

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Aftergood’s source goes on to explain that they can’t just summarize the Court’s decisions, because … well, I don’t really understand this objection, but I suspect it has to do with some disagreement between the FISC and DOJ about the opinions that currently exist.

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

Aftergood holds out hope that a letter from Dianne Feinstein will provide sufficient independent direction to convince the Court to write their own summary.

Now, I’m interested in this for two reasons. First, consider what it means that the Administration and their complacent-overseer DiFi refused to let Jeff Merkley’s amendment–which would have called for summaries in some cases–pass. For starters, it would have shortened the time frame (two years have already passed since Lisa Monaco assured Senators she’d declassify opinions if only they confirmed her) it’d take to ask the Courts for a summary and get it. Additionally, it would have required the government admit if they could not, would not, declassify any teensy bit of the opinions on this secret law. That is, they’d have to finally admit there is secret law, which they’re denying right now.

I’m officially predicting that all this will be wrapped up a few short months after after the PATRIOT Act gets extended in 2015, forestalling the moment yet again when we confirm that the government is conducting massive surveillance on innocent Americans.

But then there’s the claim that they cannot summarize this themselves (suggesting, as I said, that there was no way DOJ could write a summary that the FISC would buy off on).

Frankly, I don’t buy that. Even John Yoo’s November 2, 2001 opinion authorizing the illegal wiretap program–a 21 page document redacted down to 183 words–communicates the main gist of the opinion:

FISA only provides a safe harbor for electronic surveillance and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

FISA purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence.

[snip]

Such a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.

[snip\

Thus, unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not--then the statute must be construed to avoid such a reading.

[snip]

…we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence to defend the nation from direct attacks.

[snip]

…intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

[snip]

…no governmental interest is more compelling than the security of the Nation.” Haig v. Agee. 453 US 280. 307 (1981)

Of course, in this case, the government is hiding the current interpretation of law. So rather than displaying the ugly shreds of our Constitution as it existed when Dick Cheney roamed the halls (though some of these opinions were written under the Bush Administration), the government is faced with revealing the ugly shreds of our Constitution as it exists. And 183 words, even in an opinion written by FISC, is probably sufficient to get some complacent people rather worried.

Then there’s the matter I noted the other day. In Merkley’s speech supporting his amendment, he focused on how Section 215 plays–apparently in conjunction with FAA (that’s why the government doesn’t want FAA debated at the same time as Section 215; because we might get “confused”)–particularly the passage that allows the government to get business records relevant to an investigation.

Let me show an example of a passage. Here is a passage about what information can be collected: “ ….. reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),” and so on.

Let me stress these words: “relevant to an authorized investigation.”

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what “relevant to an authorized investigation” means or what “tangible things” means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

As I noted, Merkley professes not to know whether the “relevant to” provision of Section 215 has been used to gut probable cause in a way far more thorough than even John Yoo accomplished. But most of the co-sponsors of his Amendment do know.

And while I still think you’d be able to summarize even that, if the thing they’re trying to hide is that Section 215 has been grafted onto FAA so as to permit the government to access any tangible thing from anyone for whatever shoddy reason the government invents, I do get why it’d be hard to summarize that and still hide the fact that that’s what is now going on.

I guess they think it’d be confusing for us if their claims that there isn’t a massive program of government surveillance were proven to be utterly false.


Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

By:  Saturday December 29, 2012 1:34 pm

Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

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Did GAO Deem Secret PATRIOT a Waste of Time?

By:  Wednesday March 21, 2012 10:23 am

I noticed the same thing Charlie Savage did in this letter from Senators Wyden and Udall to Eric Holder complaining about the government’s secret interpretation of the PATRIOT Act. The Senators suggest that the secret program is not very useful.

We would also note that in recent months we have grown increasingly skeptical about the actual value of the “intelligence collection operation” discussed in the Justice Department’s recent court filing regarding the pending lawsuit. This has come as a surprise to us, as we were initially inclined to take the executive branch’s assertions about the importance of this “operation” at face value. We will provide more detail about this skepticism in a classified correspondence.

Their new-found skepticism about the program is rather interesting given that GAO recently completed a first-ever assessment of the FBI’s counterterrorism programs.

Thus, the Federal Bureau of Investigation had refused for years to submit to GAO oversight of its counterterrorism programs.  The Bureau contended that GAO had no authority to review the programs because they were funded through the intelligence budget.  Moreover, the FBI told Sen. Charles Grassley that the Office of Legal Counsel had ratified that position and supported its refusal to cooperate with GAO.

But that is now in the past.  The GAO recently completed a classified assessment of FBI counterterrorism programs with full cooperation from the FBI.  A public version of the report is expected to be released sometime in the spring.

I presume any GAO conclusions about the Secret PATRIOT program are just one factor contributing to Wyden and Udall’s skepticism. After all, Holder must know about the results of the GAO report by now, particularly if the document is being declassified (since that would require FBI’s involvement).

Nevertheless, it would be rather interesting if the long fight for real congressional oversight of intelligence programs led to increased skepticism about executive branch claims so quickly.


NSA Director Keith Alexander: The FBI Does the Domestic Collection

By:  Wednesday March 21, 2012 8:35 am

Congressman Hank Johnson asked NSA Director Keith Alexander about James Bamford’s Wired article describing the data storage and analysis center in UT. Unfortunately, rather than ask Alexander about these activities–storage and analysis–Johnson asked Alexander about data collection. Here are excerpts of the exchange:

Johnson: Does NSA have the ability to identify Cheney bashers based on the content of their emails?

Alexander: No. Can I explain? NSA does not have the ability to do that in the United States. In the United States we would have to go through an FBI process–a warrant–to serve it to somebody to actually get it.

Johnson: But you do have the capability to do it?

Alexander: Not in the United States. We’re not authorized to collect nor do we have the equipment in the United States.

Johnson: “NSA’s signals intercepts include eavesdropping on domestic phone calls and inspection of domestic emails.” Is that true?

Alexander: No, not in that context. I think what he’s trying to raise is are we gathering all the information on the United States? No, that is not correct.

Johnson: What judicial consent is required for NSA to intercept communications and information involving American citizens?

Alexander: Within the United States, that would be the FBI lead.  If it was foreign actor in the United States the FBI would still have the lead and could work that with the NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order and a court would have to authorize it. We’re not authorized to do it nor do we do it.

Note that Alexander never denies that such capabilities exist. Rather, he says that FBI would intercept communications–with a court order–and FBI would search for certain content–with a warrant.

Also note, all of Alexander’s responses were in the present tense: he doesn’t say the NSA hasn’t done these things. Only that the NSA is not now authorized to do them and does not do them.

We know several things about the government’s collection in the US. First, the telecoms own the equipment–they’re the ones that do the intercepts, not FBI or NSA. Second, the FBI can and does get bulk data information from telecoms and other businesses using Section 215 of the PATRIOT Act.

I will have more to say about this later–until then, read this post and this post as background.

There is a great deal of circumstantial information to suggest that after the 2004 hospital confrontation–which was in part a response to Congress prohibiting any DOD use of data mining on Americans–chunks of the illegal wiretap program came to be authorized under Section 215 of the PATRIOT Act, which authorizes FBI data collection.

There’s nothing General Alexander said in this non-denial denial that would conflict with the notion that FBI collects data the telecoms intercept using Section 215 of the PATRIOT Act.


The Secret PATRIOT FOIA

By:  Friday March 16, 2012 11:10 pm

To cap off Sunshine week, there was a slew of FOIA news today. For now, I’m just going to look at the response the ACLU got on its request for “OLC legal opinions and memoranda concerning or interpreting Section 215 of the USA Patriot Act.”

Josh Gerstein noted one interesting aspect of this response: the government has withheld two documents on Exemption 5–or deliberative privilege grounds. Now, the government usually claims deliberative privilege on these memos, arguing that the memos are just interpretation for whatever Executive Branch client who makes the final decision.

But this also suggests they may not be claiming these memos are classified.

Except the DOJ response does note they’ve referred one of two documents to OLC for further review.

… the Office of Information Policy has referred one document to OLC for direct response to ACLU. The document is the same as one of the two documents described above.

I wonder whether they have referred this document for full classification review.

And then there is DOJ’s all but admission that they’ve carved out the most sensitive documents on this topic–which we believe to be the use of phone GPS to get geolocation in the US. They say,

the ACLU has stipulated in ACLU v. FBI, 11 Civ. 7562 (S.D.N.Y.) that the request is limited to OLC legal opinions and memoranda concerning or interpreting Section 215 of the USA Patriot Act.

As Gerstein notes, the documents that really explain Secret PATRIOT are FISA Court opinions.

It is possible is that the OLC documents in question are not the holy grail senators, the ACLU and the Times have been seeking, but some more mundane interpretations of Section 215. Wyden and Udall suggested in their letter that the key documents amounting to “secret law” are actually classified opinions of the Foreign Intelligence Surveillance Court. Any administration legal interpretations of those opinions may also not have come from OLC, but from lawyers at the FBI or elsewhere in the intelligence community. The government is withholding other documents in the FOIA litigation as classified.

Like I say, this is a nice cap to Sunshine week–yet more obfuscation.


Warrants for Innocent People Are Not Like Warrants for Suspects

By:  Thursday September 22, 2011 8:30 am

As Charlie Savage reports, Ron Wyden and Mark Udall have written Eric Holder scolding him for mischaracterizations DOJ has made about how the government is using the Patriot Act, in part to collect information on people’s location.

They cite two examples of such mischaracterizations: First, when a number of Justice Department officials claimed,

that the government’s authority to obtain business records or other “tangible things” under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena.

[snip]

As you know, Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are “analogous” they provide the public with a false understanding of how surveillance is interpreted in practice.

What they don’t say, but presumably mean to suggest, is that the claim Section 215 is like a grand jury subpoena is false, since the latter are routinely used to collect the “tangible things” (and even ephemeral things like cell phone tracking data) of completely innocent people.

Section 215 is not like a grand jury subpoena because you don’t even have to be connected to a crime (or suspected terrorist or spy) to be caught in the surveillance it has been used to authorize.

Wyden and Udall’s second complaint pertains to word games played by DOJ spokesperson Dean Boyd in speaking to Al Jazeera English; I’ve bolded the passage they object to.

US Justice Department public affairs officer Dean Boyd dismissed the senators’ allegations. “It’s quite unfortunate that your facts are so incorrect,” Boyd told Al Jazeera English when asked about Wyden and Udall’s comments.

Boyd highlighted one provision of the Patriot Act in his response, Section 215. “Contrary to various claims in recent months and years, Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department,” he said.

Boyd’s dodge, it appears, is that DOJ hasn’t gotten an OLC opinion; they’re relying solely on FISC opinions.

This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions–and the legal interpretations they contain–continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept from the American public, the government is effectively relying on secret law.

There are two problems that Wyden and Udall’s letter present, which they don’t lay out themselves.

First, after noting that warrants for people who are not suspects are not like warrants for suspects, the Senators observe that DOJ officials have made misleading claims to the contrary to Congress. They seem to be reminding Holder that it is a crime to lie to Congress.

Or, at least, it used to be. Given DOJ’s treatment of Scott Bloch, who as a DOJ employee lied to Congress, it’s clear that DOJ is unlikely to allow its own employees to go to jail for lying to Congress. Perhaps Senators Wyden and Udall would like to make a stink about that? Otherwise, their implicit threat of legal consequences for these lies is completely impotent.

The other problem–one they probably can’t lay out in an unclassified letter–is the precedent of the In re Sealed Case decision by FISCR. As I’ve laid out, Cheney’s illegal wiretap program appears to have been in tension if not outright conflict with the FISCR for a year and a half, until Jack Goldsmith purportedly resolved that conflict with specious (though still classified) arguments. Given that DOJ has apparently not laid out what they’re actually doing with Section 215 and geolocation in an OLC memo, it increases the likelihood that the language of the FISC opinions may not precisely apply to the behavior of DOJ (as an OLC opinion might). Furthermore, in that previous case, DOJ sent a bunch of lawyers who weren’t even briefed into relevant activities to argue before the court.

There’s no affirmative evidence DOJ is doing such things in this case. But the In re Sealed Case precedent, the unexplained chose not to get OLC to approve this activity, as well as the Obama Administration’s precedent of overriding OLC when its lawyers counseled against continued Libyan bombing all raise real questions about the legal process by which the Administration came to claim this stuff has some kind of legal sanction.

In other words, while the bigger issue in this letter seems to be the government’s continued pretense that warrants for surveiling innocent Americans are just like warrants for investigating suspects, I’m beginning to suspect the bigger story is the unusual means by which the Administration got “authority” to spy on innocent Americans.


Tom Coburn Suggests Problems with Use of PATRIOT Act Section 215 Will Be Big Court Battle

By:  Wednesday June 8, 2011 8:06 am

I’m watching the SJC’s 51 minutes of almost entirely pathetic questioning of Robert Mueller to remain Director of FBI for two more years (the only real challenge came from Al Franken on civil liberties issues). And while by far the most telling aspect of the questioning came in Mueller’s repeated assertion that aspirational internet terrorists are the biggest threat we face, Tom Coburn asked a truly fascinating question.

He asked Mueller if he believed his two year extension was constitutional. He then used that as a platform to ask (my transcription),

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

In other words, he suggested that the Section 215 issues that Ron Wyden and Mark Udall have raised may quickly turn into a significant, and drawn-out, constitutional litigation.

Remember, Coburn was on the Senate Intelligence Committee last term. While he’s no longer on the Committee (and therefore was not in the briefing on February 2, 2011 that got Wyden and Udall in such a tizzy), he would have been briefed on the FBI’s use of Section 215 to develop databases of Americans who buy hydrogen peroxide and , presumably, geolocation.

FWIW, Mueller didn’t really answer the question (at least not that I noticed), though in response to Al Franken he claimed the FBI has not abused any of the PATRIOT authorities.

Well, it sounds like Coburn, at least, believes a Court (and presumably, ultimately SCOTUS) may soon have an opportunity to determine whether or not he’s right.

Update: I recall now that among the things that Wyden has asked for at times–in addition to the OLC opinions backing this use of Section 215–are FISC opinions, presumably on Section 215 applications. That suggests this may already be wending its way towards SCOTUS, only via the secret FISA courts.

Update: I may have totally misunderstood. Alternately, there may be this much sensitivity on 215 that Coburn is worried. John Gerstein includes this in an article on Coburn’s concerns about the constitutionality of a Mueller extension generally.

“I have concerns that we’re going to get mired in court battles over this that actually make you ineffective in carrying out your job,” Coburn told Mueller earlier in the committee hearing. The Oklahoma republican noted that Mueller or one of his deputies is required to sign certain types of surveillance and search orders and that such approvals could be challenged if Mueller’s appointment was in question.

But why would Coburn be primarily worried about Mueller’s 215 applications–and not FISA applications more generally?

Update: Ok, I’ve watched the piece again. Coburn was asking about potential constitutionality of Mueller’s extension raising legal issues for Section 215 orders, which have to certified by Mueller or one of two of his subordinates. That may have been just a hypothetical. But it still strikes me as an odd hypothetical.

 


Using Domestic Surveillance to Get Rapists to Spy for America

By:  Tuesday June 7, 2011 2:26 pm

The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating –

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.