“Reasonable grounds to conclude”
In honor of what appears to be warrantless wiretap day here at emptywheel, I’ve got myself lost in some hopeless weeds. Among other things, I decided to compare the unclassified declarations DNI and NSA submitted in the ACLU case on May 27, 2006 (I’m not positive, but I think they submitted identical declarations in the other pending warrantless wiretap cases) with those submitted in the al-Haramain case on June 21, 2006. (Note, in both cases, classified filings were submitted at the same time, but we don’t get to see those.)
Here they are:
ACLU: DNI John Negroponte declaration, Major General Richard Quirk (NSA) declaration
al-Haramain: DNI John Negroponte declaration, Lieutenant General Keith Alexander (NSA) declaration
As you’ll see, these declarations are almost the same in many respects, though subtly different particularly in how they discuss the warrantless wiretap program and whether or not they can disclose that someone has been wiretapped.
For the moment, I’m most interested in how they describe the warrantless wiretap program.
In the ACLU case (and the CCR case), the government claimed,
… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization …
In the al-Haramain case a month later, the government said,
… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain international communications originating or terminating in the United States where there was reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization.
In a case where no one had proof they’d been tapped, NSA and DNI claimed that they were only using the program where "one party is associated with" al Qaeda. But in a case where the plaintiff knew they had been tapped, the government weakened their claim to "reasonable grounds to conclude … one party is a member or agent of al Qaeda or an affiliated terrorist organization."
How much, in the month longer it took them to invoke state secrets in al-Haramain, do you think they pondered the possibility that a judge would demand proof that al-Haramain "is associated with" al Qaeda?
And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." My guess is that they knew they had tapped US persons overseas talking to al-Haramain.
The “reasonable grounds to conclude” phrase irritates me every time I read it or see it.
Does this phrase try to subvert privacy law with a “reasonableness” standard? which I guess would be a lower standard to prove–the government merely asserts it?
Sorry, great posts EW and bmaz.
Somehow, I just can’t read that phrase without putting airquotes around “reasonable”.
And it comes right out of John Yoo’s memos.
No one could have anticipated . . .
The “or an affiliated terrorist organization” line from the later al-Haramain declaration seems like a big shift to me, too.
This will go down in legal history as the the “Six Degrees of Osama Bin Laden” defense.
Right–thanks for pointing that out. Because they never claimed that al-H was al Q. Only that it was a funding vehicle. Thus the term “agent,” too.
One more tidbit which probably means nothing: Negroponte (but not NSA) did not modify this description with “Following the attacks of 9/11.”
The standard has shifted. According to Bill O’Reilly, Think Progress is getting pretty dangerous.
This was clearly just shuffling and dancing around the truth.
Who is judge of “reasonableness”? Is the idea that if some jerk in government thinks so, it must be reasonable? If one is as paranoid as Dick Cheney, he found it “reasonable” to suppose that Iraq had weapons of mass destruction.
To the lawyers assembled here, what is the legal standard of “reasonableness”?
Bob in HI
I remember the press conference when then NSA Director Gen. Hayden tried to misteach Fourth Amendment law: He jumped on the phrase “unreasonable search and seizure” in the text of the 4th Amendment as proof that the Fourth Amendment uses a “reasonableness” standard and not a “probable cause” standard, even though the phrase “probable cause” is the stop sign in the “shall” portion of that same sentence.
or to be more correct in my comment, because the Fourth Amendment is written in the negative, the phrase “probable cause” is not the “STOP” sign but rather the “GO” sign.
No forward action without “probable cause”.
Found this on lukery’s blog from Jan 2006.
Hayden with his “reasonable”
and then Gonzeles with his “reasonable basis to believe”:
They knew the were caught in the cookie jar. Their only defense was to do the anti George Washington and not only not fess up, but to hide it as a state secret. Do you think GW would have said something like there is reasonable cause to beleive I chopped down the Cherry tree? And when caught he would say not me, that other guy did it ( Bush, Yoo not Cheney, Addington )
I have to wonder if they aren’t also trying to claim that “international communications” don’t necessarily mean communications where one party is out of the US, but rather just where routing of communications involves some non-US point?
If they were worried about proof on the “associated with the al-Qaeda terrorist organziation” front, are they thinking that they can prove the Muslim charities are actual “affiliated terrorist organization[s]” as opposed to “material supporters” of? It almost seems that proving an “association” with would be easier than proving a “member or agent of” al-Qaeda and it sure would be nice to know what is considered an “affilliated” terrorist organization. I remember one of the Seton Hall studies on the GITMO detainees made a point of mentioning how vearious departments and branches of gov and the military were all using different listings of terrorist orgs.
With all the parsing by Gonzales and others about “the program which the President has described” it also makes you wonder if some of the info being “corrected” for Walker would be that the President also authorized purely domestic communications surveillance – with maybe some claim that they just couldn’t indicate that part since it was classified, but since the Judge is going to see a log that might possibly have purely domestic communications, someone thought they needed to correct the record before he found out on his own and got miffed?
I agree. So Gonzales’ “one avenue of communication” could reflect a mere leg of the trip taken by a phone call originating in the US, going down one road, and backtracking into and ending in the US.
I wonder if AT&T’s MaeWest exchanges have been officially named private, fiefdoms separate from the US.
Agree on both counts–it might be that the bank datamining is done out of country or something. And yes, I wonder when they told Walker about domestic domestic.
I gotta go off-topic, to post my picks, cuz I might not be around before the games start
apparently a $20 bribe only buys two trash talking threads around here
it’s a classy joint
Louisville and Kansas will win, and Kansas will continue to dance
UConn and Mizzoo play for a spot that Mizzoo wins
Pitt and duck advance, and Pitt wins the ticket to the final four
and North Carolina and Oklahoma win so Oklahoma gets to beat down a good school to qualify for the championship round
then Kansas loses to Oklahoma in the finals
nobody could have anticipated that last choice, right ???
I suspect that this switch doesn’t relate to the facts of the case, but is an indication that the anonymous lawyer who wrote the later declaration was from the NSA rather than DOJ. “One-end foreign” was the phrase used by Gonzales in his first presser trying to justify and explain the TSP. Folks from the NSA tend to use the more technical terminology. For example, check out this quote from ex-NSA spook and sometime cable news ‘expert, Lt. Col. Rick Francona from February 2006:
And here’s a January 2006 quote from Steven Bradbury:
Apropos of Bradley, this is what he testified before the House Judiciary Committee (Subcommittee on Crime, Terrorism, and Homeland Security), during hearings to discuss updating FISA (9/6/06), as reported at In These Times:
The NSA and other govt agencies are throwing smoke and mirrors, and the ACLU and other groups are already lagging behind events. The government has been routing its eavesdropping work around U.S. prying eyes for some time. Bush’s real crime, from the standpoint of the spooks and FBI types is that he pushed hard to do in the U.S. what the government has promoted in dictatorships and authoritarian countries for some time, including reciprocal agreements, secret backdoors, etc. to such up the info. By pushing hard in the U.S., he was bound to stir up a hornets nest of civil libertarians, etc., or whistleblowers like that San Francisco AT&T tech.
We cannot be protected by FISA anymore. Nothing can protect us. That’s the shocking truth.
Yeah, I’m still convinced that they designed the eavesdropping programs to violate FISA mostly just to prove they could. They could have put together pretty much the exact same program without violating FISA by putting splitting off the fiber optic cables outside the US and doing the collection overseas (probably in the UK if the Canadians wouldn’t play ball). But Cheney just had to set up a dictatorship, so he insisted they do it here.
Agreed. It was hubris on Cheney’s part, and Michael Hayden, who Bamford depicts as something of a megalomaniac (like Cheney in that, too).
It’s not that Comey or the FBI were upset about all the wiretapping. They got their dream come true when CALEA passed in 1994. They’ve spent much the subsequent years finding ways to get access to the telecom switches, and one way they did that to get close to Verint, the private company that secretly taps most U.S. communications.
They just don’t want to get caught. If I’ve learned anything from my anti-torture work, it’s that these governmental crimes are concerned with cover-up from day one. If you think about it, it’s built into the covert mind-set and SOP. In fact, it’s one way to identify what is a covert op, i.e., there’s misdirection and cover-up from the very beginning.
Very good point about how carefully cover and disinformation is laid. The Bush family has been involved in the shadow ops for so long, I think their whole lives have basically been an elaborate cover.
But you can tell a lot about what they are up to sometimes by discovering what at first appear to be unnecessary or innocuous lies.
Well, they also had to get into email servers here in the US and into bank data, which doesn’t always go overseas.
That’s true, but they could’ve gotten to that stuff via the stored communications provisions that already existed. My larger point is about how they approached all this stuff. Think about what they did with Jose Padilla. If they really believed what they said about him and their approach to fighting al Qaeda, why did they wait till he was on U.S. soil to arrest him? The CIA could have snatched before he got on that plane and disappeared him into their gulag and no one would have been the wiser. When they were done with him, they could have dumped him like they did el Masri or, if they were really the amoral protectors of our affluent society they hold themselves out to be, they could have killed him.
Instead, they waited until they could arrest him in the U.S., milk all the political drama they could out of it, and then hand him over to the military in a very public ceremony that said:
“Look at us. If we decide you’re a terrorist, even if you’re an American citizen, we can snatch you off the streets and torture you and nobody can stop us.”
And they were right. Nobody mounted any effective opposition. Sure, after years of hellish treatment, Padilla was finally transferred to the civilian court system, but how effective are anybody’s civil rights if you only get them after you’ve been tortured to the point of insanity. We didn’t even get a ruling that says the government can’t do it again. It’s actually a matter of debate whether or not the government can show up in my office right now and haul me off to be tortured. Granted, that’s unlikely to happen, but the guy two cubicles over whose family is from Pakistan probably feels a little less comfortable than I do.
All well put. But I’m tempted (he who has already hogged this thread) to say one more thing about Padilla. We’re about to have verified (oh, sometime this year, I believe), that the U.S. did conduct drug and behavioral experiments upon prisoners, and most likely Padilla among them. Will anything happen as a result? Will we even see post-Church Committee laws passed to protect us? No. The demand for consensus was drawn in the sand on 9/11 (or rather in subsequent months and years), and sealed with the deaths of 100,000s of Iraqis and an unknown number of victims who suffered death by torture (likely in the hundreds, at least).
Blood pacts are seldom broken. If you didn’t speak out before, it’s very hard to do so now.
As a result, to Bob in HI above, we won’t have Romanesque decay, but more tumult and oppression. This is because while the populace is passive, it is disgruntled, and they will want to snuff out any sparks of resistance or effective opposition. Obama may be humane – god, I hope so – but he totally accepts the need for the oligarchy to rule.
I’m not so sure that nothing will happen. The Cheneyites played their hand very skillfully while they were in power, but I’m not so sure they know how to handle the current situation. Political scandals are weirdly chaotic. If the right conditions develop, this boil on our body politic might just burst on its own without any white knight to lance it. I suspect Obama is, if nothing else, a skillful enough politician to make sure that Bush and Cheney are the ones who drown in that pool of pus.
[Sorry for the imagery, it just sort of took over.]
I hope you are right.
That’s the thing that jumps out at me – the jump in language in the affidavits tracks jumps made in their legal reasoning opinions. Thing is, these affidavits were both within about one month in the early summer 2006, and they had already made that progression well prior to that as I recall.
Because they are wiretapping the world! Take the 2006 agreement the U.S. government made with Mexico to build a huge telecom/Internet eavesdropping center. They don’t need to concentrate solely on communications originating or terminating in the United States… they are contracting it out!
What follows is from the State Department document used to procure vendors for the project with AFI (Mexico’s version of the NSA) noted above (.doc link and Google cache link):
As James Bamford noted in this book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America, p. 228:
Bamford calls the system of setting up taps on all fiber-optics cables, in conjunction with the use of private companies like Verint or Narus or NICE Systems, Echelon II.
As a famous quote from an Oliver Stone movie says, “We are through the looking glass here, people.”
U.S. democracy is proving to be a giant failure, and in its place we are seeing the worst sort of nightmare any dystopian author could imagine.
Who’s in charge, and why is Dick Cheney still in Arlington?
Who’s in charge? A very good question. Do not look for a single individual. The rule is out there for anyone to see. It’s not a dictatorship of a single person. It’s rule by committees, and these committees are democratically open to anyone who has the money or has risen as a dedicated and talented servant of the system.
The problem with dictators is that too much power is given to one person, and then the larger privileged class that depended on that dictatorship is threatened when the leader died. Simply look at the problems autocracy had with their endless wars and struggle over succession. Much better to have a limited democracy, so the loss of any one leader doesn’t bring down the system.
It’s rule by a class.
So, we live in an oligarchy that pretends to be a democracy?
As a subplot, I suspect that Obama, at least in his mind, was an outsider, imagining that he could change the game. As he learns how the game is played, however, I wonder if he finds himself in a Web not of his own making, and constrained by forces not previously understood. I am tempted also by an analogy to Bill Clinton’s ascendancy– How much farther outside the loop can you be than Arkansas? But Clinton was eventually ensnared by The Web, and became its servant.
I was briefly tempted by the eleven-dimensional chess metaphor for what Obama is doing, and I am still tempted by it. At least, Obama with his understanding of strategy is more up to that game than most. We’ll see if he, like Bill Clinton, is ensnared by the Web. If our country is indeed now an oligarchy with the pretense of Democracy, it will indeed require someone capable of eleven-dimensional chess to master the system and transform it. And if so, it will take not 100 days but 1000 days, at least, to see the results. But meanwhile there is much to be concerned about.
The alternative is pitchforks. But the Web has already protected itself with the Bush laws governing martial law. It will take something like the Pakistani Lawyer’s demonstrations, with determination and patience on an unprecedented magnitude nowhere in evidence in this country since the Civil Rights era, and the anti-war demonstrations of the Vietnam era. Instead, Romanesque decadence and decay seem more likely, with brief interruptions of sanity.
Bob in HI
The “shocking” truth, very well and succinctly stated, Valtin.
Yes, and if you read (between the lines of) the documents filed in the Nacchio case, you can see that the NSA was paying the telcos to tap into all the fiber optic cable laid overseas so that the NSA could pull all that traffic into the Narus systems any time they wanted.
Do the broken cables in the middle east tie into this?
IMO, Cheney could go on CNN tomorrow and admit to illegal wiretapping because of National Security and they would get away with it. There would be no prosecution. He admitted to torture.
I am very pessimistic these days. The release of the ICRC report on the CIA barely stirred a ripple, unless you frequent certain websites (as we do), but in Congress and the press as a whole, it’s business as usual, diverted by the circus that is the financial cataclysm. The latter itself is essentially a threatened strike by big finance capital to bring down the entire world financial system if it is not compensated for its amazing losses, once their attempt to totally game the system fell apart, mainly because they believed their own propaganda about the market.
The political parties are morally and practically dead. What they do doesn’t matter anymore. This is the legacy of lawless war, torture, and out-of-control spying. Hundreds of thousands, if not millions of Americans now staff this military-spy-surveillance world, both private and government, and they have a vested interest in its preservation. Moreover, the boards of the private companies move seamlessly in and out of the corporate world, including its financial, major energy and industrial sectors.
I’m not sure what should be done at this point. Without some kind of social struggle, the last bastions of liberty, which were set aside by having an independent judiciary, will succumb, and there will be nothing left to protect us.
Of interest to some here:
The Political Prosecutions of Karl Rove: An Update is about a video documentary about KKKarl. From the link:
There are links on the web page where you can download the video.
Bob in HI
So if I call my friend in the US (from the US), and the government has “reasonable grounds” to think my friend is going to pass on my chicken salad recipe to Al Q, then their tap on MY phone is legit because they have “reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization.”
Or am I reading too much into this?
Well, if we assume that they were wiretapping al-Haramain in Oregon before the February raid, there is this from al-Haramain lawyer Wendell Belew to consider:
Thus, the AMERICAN al-Haramain lawyers were in Saudi, probably calling back to their AMERICAN law firms and al-Haramain.
You’re probably right, but there are a couple of important points to remember that almost everyone wants to disappear down the memory hole. The operative principle in FISA was as much where the eavesdropping took place as it was where the conversations occurred. Also, under FISA, the mode of communication (over the air vs. on the wire) was important.
Without going into my full-blown ‘history of the Church committee’ rant, the rules under FISA worked like this:
Then NSA, et. al., was allowed to do anything they wanted to outside of U.S. borders when it came to signal collection, but they couldn’t target U.S. citizens and they had to throw away information about U.S. citizens whether it was picked up on from any sigint collection they did overseas. Inside the U.S. the only thing they were allowed to do was suck up all satellite calls and throw way information about U.S. citizens. What they were explicitly prohibited from doing was tapping wire lines inside the U.S., no matter where the calls originated or terminated. There was a reason for this. They got caught tapping switches in New York City that handled calls to Latin America (on behalf of the DEA and FBI).
It’s very clear that all of the TSP involved tapping wires (fiber optic cables) and switches inside the U.S. It was illegal and that will be very clear if the al-Haramain case moves forward. That’s why I’m not worried about the statute of limitations on the March 2004 activity running out the way bmaz is. al-Haramain is still an aggrieved party, the illegality continued right up until the passage of the reworked FISA in 2008. Even the so-called deal that they worked out with the FISC in 2007 doesn’t save the TSP.
The difference between the time period I am discussing, the limited window after the hospital incident, and that which you are sure extends to the 2008 FAA revision is one of ability to prove up a case beyond a reasonable doubt. The difference between the two is night and day. Violations in the limited period after the hospital incident are literally almost per se violations, and this is especially so for the three al-Haramain dates for which we have known documentary proof of their illegal surveillance. These are straightforward to prosecute and are all likely convictable offenses. For anything outside of that time period, the available affirmative defenses are remarkable greater in both number and strength and that makes it geometrically harder for a prosecutor to charge and bring before a jury. Federal prosecutors have guidelines and informal rules of thumb such that they do not even charge cases they don’t believe they absolutely believe they can get a conviction at trial on. State and local prosecutors do this all the time, but not the Feds. There is at least half a chance they could see themselves winning on the al-Haramain charges; the others, you are fooling yourself on. There is a large difference between what could theoretically occur and what in real practice could occur and you are not acknowledging that distinction.
17 – that’s an interesting dichotomy. So it sounds something like the NSA guys have the regulations that they know the program broke uppermost on their minds and they specify language relating to those regs to clarify that the President specifically authorized them to violate those regs (and they may be pulling language from the 45 day military orders that was issued ??) while perhaps the DOJ is worried more about not revealing more of the “still classified” elements of surveillance that the President had not confessed to and about the constitutional issues whereby they were hinging their authority to seize and search communications of Americans on American soil (a clear Keith case issue) on there being a foreign element to the communiciations, so they focused on the “one end foreign” element.
IOW, the NSA guys were drafting with regulations they violated “but-for” the President’s authorization and the language of the orders given to them in mind; while the DOJ lawyers were drafting with the Consitution and case law they violated “but-for” coming up with some way to try to distinguish their facts. And the NSA guys were drafting as if they thought that the judge might eventually see the orders and their language, while the DOJ was drafting with the wing and prayer that they could keep the Judge from ever seeing the orders?
***************
Re the issue of just using non-US situs splitting on the lines, 24 -”splitting off the fiber optic cables outside the US and doing the collection overseas” one thing I think you have to realize is that these companies have duties under the laws of those countries as well. One thing we have seen in cases like Arar and Binyam Mohamed etc. and what we saw very clearly in the SWIFT investigation/prosecutions is that the foreign locations have regulatory entities and judiciaries that are not as subservient to even their own Executive, much less the US Executive. So the fig leaf to protect the companies – the argument of compliance with what were ‘believed in good faith’ to be ‘lawful’ US requests or orders – wouldn’t exist overseas. It didn’t really even fly on the SWIFT accessing with the protections of US based activities authorized by the US Sovereign.
37 – “how effective are anybody’s civil rights if you only get them after you’ve been tortured to the point of insanity. We didn’t even get a ruling that says the government can’t do it again. It’s actually a matter of debate whether or not the government can show up in my office right now and haul me off to be tortured”
Amen. I can’t get over all the smarmy statements by those involved in the torture programs that a reason we actually have to hold people forever without trial is that we can’t try them after what we’ve done to them. BULL – the United States Dept of Justice has already directly and specifically been invovled in having a US citizen tortured on US soil and then trying him, while not allowing any defenses at trial relating to his torture. The US courts just fell on their bellies and crawled when DOJ told them they were not to allow any discovery on the torture and treatment. People like Goldsmith should have their tongues turn to acid in their mouth when they spew nonsense about not being able to try their torture victims.
You know, awhile back Goldsmith and Posner penned an op ed that we couldn’t let GTIMO detainees go before a court bc they would all make up stories about torture. Revealingly, the example that Goldmsith used – his analogy for the GITMO detainees – was Scheherazade. He didn’t want us to let GITMO detainees spin tales like Scheherazade. You think there might be one or two people in the Harvard environs who might explain to him the backstory on Scheherazade?
Something about a crazed, irrational despot who was repeatedly putting to death innocent people until one of the innocents began pretty much telling him whatever came to mind to keep him from injuring her . . .
That’s the analogy from Goldsmith’s subconscious – that we can’t let people see the GITMO detainees who have been put in the role of Scheherazade.
38 – very good point.
40 -to clarify, when you are talking about what they were “allowed” to do, you are talking about without a FISCt warrant, correct? Keep in mind that one problem with the use of a court for items like non-us access to communications is that the US court has no physical jurisdiction to issue orders on what can be done on that foreign situs if it is being done to a non-US person. If a US person is involved, though, they have party jurisdiction, and if there is a US agency and its actions affecting a US person, that closes the loop for the court’s jurisdicaiton over the parties.
[the latin american taps – that was a Clinton administration program wasn’t it?]
As bmaz points out at 42, the difference is basically what Congress has done and authorized the AG to do and what a court might make of the reasonability of the AG’s determinations during a period where OLC had specifically determined that the program should not go forward without revision and yet it did anyway.
On the Constitutional and FISA law issues, you are right that the hospital showdown period is not determinative, but if the courts buy-in on the Congressional “fix” then the period has a pretty significant impact, especially on the “good faith” and scienter issues and the ability of the AG reviewing the situation to have a reasonable grounds to issue his certification.
By the way, I think that the scenario in 38 is exactly what is referenced in original complaint #18 in the suit filed 2/28/06:
This did not come from the logs.
I guess re Valtin in general, it was easy to see that the Bush admin ruled oligarchically because Republicans have not favored regulation on either power center he is talking about and because Bush listened to such a small group of people. Obama will be accessible to a broader group of people and will be selling the concept of stricter regulation. There is also the issue of entitlement reform for liberals/progressives to pay close attention to. Obama’s temperament will not let the broad military community or the broad financial community get nothing. But if the public gets nothing is what you could organize around, even without having equal knowledge about the two sets of issues.
(I brought home “The Shadow Factory” two days ago.)
(This is a good issue for the Seder table: freedom to help determine the public interest)