Thomas Hogan

DOJ Says You Can’t Know If They’ve Used the Dragnet Against You … But FISC Says They’re Wrong

As I noted the other day in yet another post showing why investigations into intelligence failures leading up to the Boston Marathon attack must include NSA, the government outright refuses to tell Dzhokhar Tsarnaev whether it will introduce evidence obtained using Section 215 at trial.

Tsarnaev’s further request that this Court order the government to provide notice of its intent to use information regarding the “. . . collection and examination of telephone and computer records pursuant to Section 215 . . .” that he speculates was obtained pursuant to FISA should also be rejected. Section 215 of Pub. L. 107-56, conventionally known as the USA PATRIOT Act of 2001, is codified in 50 U.S.C. § 1861, and controls the acquisition of certain business records by the government for foreign intelligence and international terrorism investigations. It does not contain a provision that requires notice to a defendant of the use of information obtained pursuant to that section or derived therefrom. Nor do the notice provisions of 50 U.S.C. §§ 1806(c), 1825(d), and 1881e apply to 50 U.S.C § 1861. Therefore, even assuming for the sake of argument that the government possesses such evidence and intends to use it at trial, Tsarnaev is not entitled to receive the notice he requests.

This should concern every American whose call records are likely to be in that database, because the government can derive prosecutions — which may not even directly relate to terrorism — using the digital stop-and-frisk standard used in the dragnet, and never tell you they did so.

Note, too, Dzhokhar’s lawyers are  not just asking for phone records, but also computer records collected using Section 215, something Zoe Lofgren has made clear can be obtained under the provision.

And in the case in which Dzhokhar’s college buddies are accused of trying to hide his computer and some firecracker explosives, prosecutors profess to be unable to provide any of the text messages Dzhokhar sent after his last text to them. That stance seems to pretend they couldn’t get at least the metadata from those texts from the phone dragnet.

The government, then, claims that defendants can’t have access to data collected using Section 215. They base that claim on the absence of any language in the Section 215 statute, akin to that found in FISA content collection statutes, providing for formal notice to defendants.

But at least in the case of the phone dragnet, that stance appears to put them in violation of the dragnet minimization procedures. That’s because since at least September 3, 2009 and continuing through the last dragnet order released (note, ODNI seems to be taking their time on releasing the March 28 order),  the minimization procedures have explicitly provided a way to make the query results available for discovery. Here’s the language from 2009.

Notwithstanding the above requirements, NSA may share information derived from the BR metadata, including U.S. person identifying information, with Executive Branch personnel in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings.

The government routinely points to these very same minimization procedures to explain why it can’t provide information to Congress or other entities. But if the minimization procedures trump other statutes to justify withholding information, surely they must have the weight of law for disclosure to criminal defendants. And all that’s before you consider the Brady and Constitutional reasons that should trump the government’s interpretation as well.

Using the formulation the government always uses when making claims about the dragnet’s legality, on at least 21 occasions, FISC judges have envisioned discovery to be part of the minimization procedures with which the government must comply. At least 7 judges have premised their approval of the dragnet, in part, on the possibility exculpatory information may be shared in discovery.

Now, there is a limit to the discovery envisioned by these 21 FISA orders; this discovery language, in the most recently published order, reads:

Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings …

That is, this discovery language only includes the “results from intelligence analysis queries.” It doesn’t permit new queries of the entire database, a point the government makes over and over. But in the case of the Marathon bombing, we know the queries have been run, because Executive Branch officials have been bragging about the queries they did after the bombing that gave them “peace of mind.”

Those query results are there, and the FISC judges explicitly envisioned the queries to be discoverable. And yet the government, in defiance of the minimization procedures they claim are sacred, refuse to comply.

Chronicle of the Phone Dragnet

  1. Howard, Malcolm BR 06-05 (5/24/06)
    • One group (al Qaeda) originally approved, a second (or more) added via amendment in August 2006)
    • Footnote 1 asserting most calls domestic to domestic (redacted thereafter)
    • Probably just 2 providers (plural custodians, but short redaction)
    • Includes compensation paragraph dropped with third order
    • Footnote 2: 2 numbers per day
    • Only 7 people authorized to sign off on RAS: Signals Intelligence Directorate Program Manager for Counterterrorism Special Projects; the Chief or Deputy Chief, Counterterrorism Advanced Analysis Division; or one of the four specially authorized Counterterrorism Advanced Analysis Shift Coordinators in the Analysis and Production Directorate of the Signals Intelligence Directorate
    • Classification mark redacted
  2. Howard, Malcolm BR 06-08 (8/18/06)
    • Begin large footnote modifying names of (now 2) organizations cleared for RAS
    • 8 authorizers (plus addition of “production” to SID Program Manager), addition 5th CT Shift Coordinator
    • Add language approving RAS for FISA targets
    • Classification based on application; declassification of President
    • 2 (4 pages and 15 pages) Orders of unknown subject (10/31/06)
  3. Scullin, Frederick, BR 06-12 (11/15/06)
    • Compensation paragraph dropped
    • Footnote 2 changed to 3 numbers a day
    • Mandate review every 90 days
    • Add at least 2 spot checks every 90 days
    • Congressional notification regarding implementation of Section 215 authority (1/25/07)
  4. Broomfield, Robert, BR 07-04 (2/02/07)
    • Add exception to FISC authorization for RAS for FISA docket 06-2081
    • Internal Executive Branch email message and attached document regarding implementation of Section 215 authority (3/9/07)
  5. Gorton, Nathaniel, BR 07-10 (5/03/07)
  6. Gorton, Nathaniel, BR 07-14 (7/23/07)
    • Replace docket 06-2081 exception to FISA language w/docket 07-449 [see also]
  7. Vinson, Roger, BR 07-16 (10/18/07)
    • Replace docket 07-449 FISA exception with PAA exception
  8. Howard, Malcolm, BR 08-01 (1/4/08?)
    • Footnote 5 notes that “for analytical efficiency” “a copy of data” from phone dragnet data will be stored on same server as [EO 12333 and foreign collected] data
    • Move spot check language to FISC l
    • NSA management cancels monthly due diligence meetings (1/08)
    • DOJ IG Report on Section 215, including 2 classified sections that presumably include the dragnet (though only for 2006), as well as notice of failure to meet statute’s minimization requirement (3/08)
  9. Kollar-Kotelly, Colleen, BR 08-04 (4/3/08)
    • Approval for training new NSA analysts?
    • 31 newly trained NSA analysts query BR database using 2,373 identifiers without knowing they were doing so (4/08)
    • Internal memo addressed to NSD/OI officials including Matthew Olsen in anticipation of filing to FISC (6/6/08)
  10. Zagel, James, BR 08-07 (6/26/08)
    • NSA shifts the servers the reports are retained on (no word about the records themselves) (7/29/08)
    • Disabling of hyperlink allowing CIA, FBI, and NCTC to access BR metadata directly (Note, ETE report says this happened in “Summer 2008 timeframe”) (7/08)
    • Distribution of Data Integrity Analysts’ defeat list changes (probably expands) in some way (8/08)
    • NSA tells FISC about tool to find correlations (8/18/08)
  11. Zagel, James, BR 08-08 (9/19/08?)
    • AG Guidelines for Domestic FBI Operations (9/28/08)
    • Notice of April violations (10/17/08)
    • Start date for audit as part of E-2-E (11/1/08)
    • 27,090 identifiers allowed to be contact chained, as subsequently reported (11/2/08)
    • (12/1/08) BR 06-05 and 6 other docket orders first provided to Congressional oversight committees
    • Start date for 2 analysts doing 280 queries using non-RAS identifiers (12/10/08)
  12. Walton, Reggie, BR 08-13 (12/11/08)
    • Begin requirement of consultation w/DOJ
    • Supplemental opinion assess legality under 2702/2703 (12/12/08)
    • Notice on “alert” violation; 1,935 of 17,835 identifiers RAS approved (1/15/09)
    • End date for 2 analysts making 280 queries for non-RAS identifiers (1/23/09)
    • Notice of violation on 280 non-RAS queries (1/26/09)
    • Order for more information regarding 1/15/09 notice on “alert” violation (1/28/09)
    • Supplemental notice about failed attempt to kluge the automatic notice (2/3/09)
    • Memo providing more info on violations (2/12/09)
    • Notice of violation on query tool (2/26/09)
    • Notice of domestic identifiers being queried w/o RAS review (3/4/09)
  13. Walton, Reggie, BR 09-01 (3/5/09)
    • Notice that “data integrity” analysts sharing non user emails beyond BR cleared analysts (5/8/09)
  14. Walton, Reggie, BR 09-06 (5/29/09)
    • Secondary order to provider (Verizon?) excludes foreign-to-foreign data
    • Supplemental order (both dockets) on sharing outside of NSA (5/29/09)
    • Notification of chaining on correlated numbers (6/15/09)
    • Notification of access by CIA, FBI, NCTC (6/16/09)
    • Supplemental order in both dragnets (6/22/09) [See PR/TT version]
    • End-to-End report (6/25/09)
    • Notification that NSA following USSID 18 instead of minimization procedures (6/26/09)
    • Notification of unminimized results shared with unidentified recipient (GCHQ?) (6/29/09)
    • End-to–End report shared with FISC (7/2/09)
  15. Walton, Reggie (?) BR 09-09 (7/8/09) [see also]
    • New group approved via primary order pp. 5-7
    • Order specifically mentions NSA failure to follow BR-specific minimization procedures
    • Order requires briefing on legal requirements of dragnet (10)
    • Order requires consultation with DOJ, including on automated queries (14)
    • Requires explanation why NSA disseminated out of NSA, can’t remove credit card info (16-17)
    • Order requires weekly reports
    • Approval for data integrity analysts’ use of non-user specific identifiers
    • 4 new roles approved to approve disseminations
    • Notice of ability to obtain fourth hop contact number (8/4/09)
    • Submission with E-2-E (8/19/09)
  16. Walton, Reggie, BR 09-13 (9/3/09)
    • Order regarding new dissemination violations (9/25/09)
    • Briefing materials for FISC regarding implementation of Section 215 authority (9/18/09)
  17. Walton, Reggie (?) BR 09-15 (10/30/09) [See also]
    • Supplemental opinion on historical queries and dissemination (11/05/09)
    • Briefing materials for government personnel pertaining to implementation of Section 215 authority (11/18/09)
  18. Walton, Reggie (?) BR 09-19 [see also]
  19. Walton, Reggie, BR 10-10 (2/26/10)
  20. Walton, Reggie, BR 10-17 (5/14/10)
  21. Walton, Reggie, BR 10-49 (8/04/10)
  22. Walton, Reggie, BR 10-70 (10/29/10)
    • Memo to Congressional staffer regarding certain acquisition authorities, including Section 215 (12/1/10)
  23. Bates, John, BR, 11-07 (1/20/11)
  24. Feldman, Martin, BR 11-57 (4/13/11)
  25. Bates, John, BR 11-107 (6/22/11)
  26. ~9/20/11?
  27. BR-11-191 12/11? [see also]
    • Approval of new automated alert
  28. ~1/29/12?
  29. ~4/29/12?
  30. ~7/28/12?
  31. ~10/26/12?
    • Supplement approval of new automated query, 11/12/2012
  32. ~1/25/13?
  33. Vinson, Roger, BR 13-80, (4/25/13)
  34. Eagan, Claire, BR 13-109, (7/18/13)
  35. McLaughlin, Mary, BR 13-158 (10/11/13)
  36. Hogan, Thomas, BR 14-01 (1/3/14)
    • Congress can access database to perform oversight
    • Supplement gives FISC review over RAS and limits to 2 hops (2/5/14)
    • Order denying motion to preserve data (3/7/14)
    • Order approving preservation of data (3/12/14)
    • Order requiring explanation for material misstatement regarding preservation orders (3/21/14)
  37. ? (3/28/14)

John Bates Intervened in the Phone Dragnet Problems

Yesterday, I Con the Record released more records in response to the ACLU FOIA for records on the Section 215 program (though once again, they didn’t mention the FOIA).

Three of the documents provide more data points for a notable progression I laid out in this post, in which Reggie Walton appears to have shut down some collection from one telecom on July 9, 2009, reapproved it (including retroactively) on September 3, 2009, just in time for the Intelligence Community to claim Section 215 collection was central to the Najibullah Zazi investigation.

First, a July 2, 2009 notice to Walton provided the End-to-End review “for the Court’s information.” It had been completed on June 25 and provided to the Intelligence and Judiciary Committees on June 30. It was also included in the formal DOJ filing to Walton on August 19, which left the impression that DOJ had held it for two months before sharing it with the court. But this notice makes it clear Walton received a copy with only a slight delay (and the day before they delivered the first weekly report he had demanded). It also makes it clear he had gotten it, and probably read it, before whatever action he took on July 9. What may be the problematic collection (see page 15-16) apparently got reported to FISC before May 29 (no mention of a formal notice is included, though it seems to be addressed in the May 29 order). But there are other violations (such as the sharing described on page 17 that may involve Homeland Security) that appear to have been newly disclosed with this report.

In a second document — a September 10 notice to just the Senate Intelligence Committee (?!) that Judge Walton had reauthorized the bulk collection program on September 3 — reveals that on August 4, FISC Chief Judge John Bates had written Eric Holder a letter raising concerns. The notice portrays a September 1 demonstration for Walton, Bates, and Judge Thomas Hogan (who I believe was the only other FISC judge from the DC Circuit at the time) apparently at NSA as a response to Bates’ concerns. But the description of the demonstration also notes that,

The information was presented in the context of a current operation that concerns a potential threat to the U.S. homeland.

Remember, this was before (by 2 days) the Zazi investigation started. So this must reference something else, though it certainly didn’t sound all that urgent.

In any case, while it is unclear who got Bates involved (after all, it could have been the Administration, complaining that some of its production had been cut off), it is noteworthy he was involved, which provides a little more background to the frustration he expressed in his October 3, 2011 opinion accusing the government of signifiant misrepresentations on 3 occasions.

Finally, on October 21, in what must have been part of the PATRIOT Act reauthorization push, National Counterterrorism Center’s Michael Leiter and the NSA’s Assistant Deputy Director for Counterterrorism addressed the House Intelligence Committee. Along with their case for the program and a heavily glossed description of the problems with it (which they indicate had already been noticed in some form to the Committee), they described how tips from the dragnet “have contributed directly to the following specific cases,” plural. It includes an entirely unredacted description of the dragnet’s role in the Zazi investigation (without, for example, disclosing FBI already knew of Adis Medunjanin through travel documents to Pakistan where he and Zazi trained with terrorists). And it includes a shorter description of what must be at least one other case, which is entirely redacted. It’s possible, after all, that that second “success” (which is so credible we can’t know about it) is the ongoing threat referred to in the September 10 notice, which NSA used to scare FISC into reauthorizing the dragnet.

One more detail about the notice to HPSCI. It fails to mention that, less than 3 weeks after he reauthorized the dragnet, Walton learned — from DOJ, not NSA — of further information sharing violations. In other words, the HPSCI witnesses falsely portrayed the problems as fixed, when there were pending violations still being discussed between NSA and FISC.

There’s nothing enormous in these revelations, but they do add to the understanding of how grave FISC took these violations to be, and how partial was Congressional briefing on them.  Continue reading

Shorter Neal Katyal: Please Appoint Me Judge!

If it weren’t for this line, disdaining what judges do,

But judges should be left to what they know.

I would be convinced that this op-ed from Neal Katyal, arguing against a Drone and/or Targeted Killing Court, was a transparent attempt to curry favor with the man who gets to nominate people for lifetime appointments to federal courts.

Because it strikes me as a dishonest argument, one made by someone who almost surely knows better, repeating the AUMF fallacy.

But there is no true precedent for interposing courts into military decisions about who, what and when to strike militarily. Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.

While the Bush Administration didn’t read Ted Olson into its worst OLC opinions when he was Solicitor General — and so it’s possible (though unlikely) that Katyal was likewise not read into the June 2010 opinion that authorized the CIA to kill Anwar al-Awlaki during the time he was Acting Solicitor General — he was almost certainly part of the legal strategy to respond to the ACLU/CCR suit hoping to enjoin the President from killing Awlaki unless he represented an imminent threat, which also occurred while he was Acting SG.

Neal Katyal almost certainly knows the CIA was cleared to carry out that killing (though he had left the Administration by the time Awlaki was ultimately killed), and that this was a covert op.

To argue for a star chamber within the Executive Branch, he paints the judges who serve on the FISA Court as generalists who have no clue about national security issues.

There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.


What reason does the FISA Court give us to think that judges are better than specialists at keeping executive power in check?

The FISA Court includes judges like Thomas Hogan (who has been a District Court judge in DC since Katyal was 12) and is now led by Reggie Walton (who joined DC District back when President Obama was still a State Senator). While they’ve seen their share of DC drug cases, they’ve also presided over some high profile national security cases (both had a part in the Libby case, both have issued key rulings in Gitmo habeas cases).  But Katyal thinks they’re just not capable of reviewing whether an American should be killed by his government with no due process.

There’s more that’s laugh out loud funny in Katyal’s op-ed, such as the suggestion that targeted killing of an American (as far as I know, no one is even considering using a FISA process with non-citizens) presents no Constitutional issues.

Even the questions placed before the FISA Court aren’t comparable to what a drone court would face; they involve more traditional constitutional issues — not rapidly developing questions about whether to target an individual for assassination by a drone strike.

And the suggestion that the Executive can be trusted to hand over its own analysis on targeted killing to Congress.

The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review.

Not to mention that a “court” which the President was free to overrule amounts to any kind of due process.

Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

Mind you. I, like Katyal, think the idea of turning FISA into a Drone and/or Targeted Killing court is terrible. But I’m not arguing that’s because an actual court would infringe too much on the President’s claimed authority to kill Americans at will.

No Habeas If They’ve Moved Your Body

Fatster linked to this Carol Rosenberg story, describing how Judge Thomas Hogan dismissed the habeas petitions of over a hundred former Gitmo detainees because they were no longer held at Gitmo–though they may be held by US proxies elsewhere.

A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.The ruling dismayed attorneys for some of the detainees who’d hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.

There’s one argument, in particular, that is very haunting, given our recent discussions of the way the US was playing with jurisdictional definitions to hold or kill captives.

Moreover, he added, CCR affiliated attorneys have tracked former captives to prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military. He said “the U.S. may be pulling the puppet strings” of their continued captivity.

Hogan said the attorneys for the former detainees hadn’t offered enough proof that other countries were operating essentially as U.S. proxies. “Petitioners are short on examples, except for the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan have been detained at a detention facility built by the United States,” he wrote.
And let’s not forget how Ibn Sheikh al-Libi was suicided conveniently after we sent him back to a Libyan prison rather than Gitmo.

Emptywheel Twitterverse
JimWhiteGNV RT @GatorZoneBB: Who's ready for doubleheader action at McKethan Stadium today? #Gators and Bulldogs start at 3 p.m.
emptywheel Know what official website's privacy policy I'd like to see? I Con the Record.
emptywheel Utterly scathing -- and apt -- quote from Eugene Fidell on Gitmo: "Courtroom w/3 benches."
emptywheel @phillipanderson Must be just as old cause McC and I just got back from our hour walk too. And it's an early 8 here than it is there!
emptywheel @CasparBowden Suspect it's more like, "we fucked up and don't want to tell you" or "you're safe but have bad friends" @glynmoody
bmaz @JasonLeopold Is there a detention facility at Coachella? Also, new drone stoke in Yemen tonight. 18 dead. @carwinb @chrisjwoods @lohphat
bmaz RT @ionacraig: Up to 18 dead in apparent US #drone strike in al-Baydah, #Yemen. Reports of civilians amongst the dead.
bmaz @banditelli Pretty fucking awesome.
bmaz Don't worry, they will again very soon because Ken Kendrick sucks RT @DidDbacksLose No @erinscafe
bmaz RT @AP: users told to change passwords due to vulnerability to #Heartbleed security bug:
bmaz Whoa did Nico Rosberg screw Alonso's last hot lap by that shunt in the last corner in Q3?
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