DiFi’s Invitation to a Fishing Expedition

fly_fishing_in_southeast_louisiana.thumbnail.jpgAs I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are 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) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

‘(ii)(I) pertain to a foreign power or an agent of a foreign power;

‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to (I’ve included the actual language below so you can check my work).

(2) shall include— (A) a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant that there are 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) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

DiFi’s language does two things. First, it shifts the burden of proof even further than the current "presumptively relevant" to the "justify the belief of the applicant language." If I understand the language correctly, the FISA Judge would go from presuming something is relevant if the FBI has told him so, to simply checking to make sure the FBI has shown why they believe this information is relevant–and to hell whether the FISA Judge thinks it is relevant or not. Though I guess in both cases the FISA Court is just a mandated rubber stamp. [Update: I’ve spoken with two people who have persuaded me the new language is an improvement over the "presumptively" language. Update2: Nope, I think I was right the first time.]

More troubling, DiFi completely eliminates any requirement that the Section 215 records have to pertain to someone with a known contact with someone suspected to be an agent of a foreign power. Whereas under the current language, the FBI arguably can only collect lists of people who have some kind of connection to Zazi who have also bought acetone and/or hydrogen peroxide, under DiFi’s proposed language, they could collect lists of everyone–everyone!!–who has bought products with acetone or hydrogen peroxide in it.

As Russ Feingold pointed out yesterday, during the last reauthorization of the PATRIOT Act, DiFi said that such broad language would be an invitation to a fishing expedition. 

I guess, in the interim four years, she has developed a taste for fishing.

(Image by Louisiana Angler)

(a) IN GENERAL.—Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended—

(1) in the section heading, by inserting ‘‘AND OTHER TANGIBLE THINGS’’ after ‘‘CERTAIN BUSINESS RECORDS’’;

(2) in subsection (b)(2)—

(A) in subparagraph (A)—

(i) by striking ‘‘a statement of facts showing’’ and inserting ‘‘a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant’’; and

(ii) by striking ‘‘clandestine intelligence activities,’’ and all that follows and inserting ‘‘clandestine intelligence activities;’’; and

(B) by striking subparagraph (B) and inserting the following:

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

‘‘(C) a statement of proposed minimization procedures.’’; and

(3) in subsection (c)—

(A) in paragraph (1)—(i) by inserting ‘‘and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g)’’ after ‘‘subsections (a) and (b)’’; and (ii) by striking the second sentence; and (B) in paragraph (2)— (i) in subparagraph (D), by striking ‘‘and’’ at the end; (ii) in subparagraph (E), by striking the period at the end and inserting ‘‘; and’’; and (iii) by adding at the end the following: ‘‘(F) shall direct that the minimization procedures be followed.’’

144 replies
  1. al75 says:

    I may be missing something here – as a physician, I’m accustomed to my records being under governmental scrutiny. When I prescribe narcotics, the state government tracks the prescription. I’m required by law to keep records on why I’m prescribing – and it’s a reasonable requirement, given the danger of misuse of these drugs.

    Why should compounds for explosives be any different?

    I remember the outcry against proposals to chemically “tag” ammunition during the Malvo/Mohammed sniper terror era, to allow bullets to be traced – at that time it was the NRA denouncing governmental intrusion.

    Concentrated hydrogen peroxide has very limited usage – what’s wrong people who buy it understanding that there may be a check on the use one is making of it?

    • bmaz says:

      The H2O2 Zazi and friends bought was NOT all that concentrated, and H2O2 is commonly used for all kinds of innocuous things.

      • LabDancer says:

        In addition, the sorts of narcotic substances which a person would only be authorized to handle by virtue of being licensed to do so under state legislation, or by virtue of their being received and kept for personal use within the scope of a physician’s care, are covered under a regime of state and federal legislation that renders the analogy that’s being implied by a175 tenuous inapt.

        Not meaning to aim this at a175, just as a general observation, it’s been my experience that physicians very often exhibit an unfortunate tendency to overlook that pretty much everything they do professionally falls under some concept of privilege, as opposed to, for example, of entitlement.

      • BoxTurtle says:

        I agree. I have a quart of h2o2 here at home now. I use it as a disinfectent. Also, about a quarter cup per 30lbs of body weight will cause your dog to safely barf up whatever he recently ate.

        That said, I got no problem signing for it. I got no problem signing for muratic acid, glycerene, household bleach, or any of the other common things that can be combined to make some thing nasty. BATF could track it like they currently do for pre-made explosives. Let’s see what the GOP thinks of expanding the BATF!

        But if we do, we’ll waste a LOT of time for no real gain.

        Boxturtle (will be happy to demonstrate the barf technique for any DHS agent who’s interested)

        • BoxTurtle says:

          Vet recommended. It likely saved one of our husky’s after the fool canine decide to eat a bottle of tylenol. Just remember, it turns to water after awhile and you need to keep it fresh. But it’s cheap.

          Boxturtle (Remember to keep koolaid on hand as well in case DHS comes calling)

        • emptywheel says:

          Luckily, McC the MilleniaLab has stopped eating stuff like that. Though he did decide to try chocolate not that long ago–just not that much. I don’t think he liked it bc he has left the rest for me ever since.

        • freepatriot says:

          I got a lab mix that eats anything (pin cushions, brillo steel wool pads, plastic bottles, etc)

          she once ate a whole bag of chocolat kisses, tinfoil and all

          then we had a yard full of sparkly landmines

          I don’t need to know how to make a dog barf

          anybody know how to stop them from barfing, or where to rent a cheap carpet cleaner


          hey, you guys started with teh dog stories, not me …

        • emptywheel says:

          McC once ate my sourdough starter–all of it. I think he did it bc he perceived the yeasties as a competitor for my attention. He farted for days and days, but not as long as it took us to grow new starter.

        • freepatriot says:


          best dogger story ever

          and that comes from a person who once had to ask “hey, um, didn’t this turkey have two legs ???”

          it’s their world

          we’re just here to pick up the poop

          the dao of DOG

        • freepatriot says:

          I don’t know, but when I take her for a walk, she eats the bugs she finds on the path

          she also loves eating moths that flock to a lantana bush in my yard

          and she chews about 10 lbs of sticks a week

          goat, beaver, anteater, I don’t know

          I say “what the hell have you got now” about 6 times a day

        • al75 says:

          I’m out of my area of expertise here — I believe that the concentration of hydrogen peroxide required to make TTP is unusually high — at least 50% or so. The hydrogen peroxide one gets in a drugstore for use as a disinfectant is I believe around 10%.

          I hope my comment about my practice of medicine is not understood as a sense of entitlement — in fact I meant the opposite: governmental limitation placed on my prescribing powers, requiring me to potentially have to explain what compounds I’m using for what purpose.

          beyond the specifics of what concentration of what chemical is actually required, there is a more general question — does the government reasonably have the right to monitor purchase of weapons or components that can easily be fashioned into weapons?

          While I share the sentiments of most of the readers of this site about the appalling civil liberties policies under the Bush-Cheney regime, I’m just not sure that monitoring compounds that can be diverted to manufacture of explosives is the right place for people of our view to focus her concern.

          many of you are doubtless of my own generation, that is old enough to remember the “liberal” apathy about street crime and enforcement of other quality of life policing issues that led “law and order” in an era of escalating street crime to become “conservative” rather than general governmental concern.

          This was a failure, in my view, of the progressive movement which rightly alienated many more centrist voters and pushed us into the wilderness for three decades. Apathy about legitimate antiterrorist measures has the potential to similarly hamstring our present prospects for advancing many of the things we care about.

          Do any of you object to governmental monitoring of purchase of large amounts of fertilizer, such as that used by Timothy McVeigh in the Oklahoma City bombing?

        • emptywheel says:

          Once again, you’re comparing purchases of LARGE amounts of fertilizer to everyday amounts of certain products. Look at what they’re apparently investigating three contacts of Zazi for: one, an 8 oz bottle of acetone and one gallon of a container containing H2Os. Another, “an acetone product.” Another, three bottles of an apparent hair product.

          I don’t know what the answer is–I have repeatedly said that. But writing a law that allows the govt to collect unlimited amounts of business records with no showing of some other reason for suspicion–while it may seem logical in the specific context of the Zazi investigation–seems like a giant invitation for abuse.

          So my question is, is there another way to do this? I’ve made the analogy to Meth precursor supplies (which is a better analogy than your doctor’s analogy, bc it focuses on purchase which is the FBI focus now). But to do that we’d need to have an actual discussion about this, which this whole secret debate seems to be designed to accomplish.

          As I pointed out elsewhere, another logical thing for the govt to gather is records of those who rent out suites in local hotels with kitchenettes. You might find terrorists, but you also might find a bunch of people who are having extramarital affairs. So the FBI keeps a database of people having local extramarital affairs, with little onus on them to destroy the records? Do you really think THAT wouldn’t be abused?

        • bmaz says:

          Since the last time I mentioned this, I went out to my shed and looked. In addition to two gallons of muriatic acid and gallon of acetone I have in the garage, I found a little over two quarts of H2O2 in the shed. Is old and probably useless now (degrades with exposure to air with moisture in it over time and I last used it long ago) so i will chuck it. But there you go, I R Terrist.

        • bmaz says:

          Muriatic acid is actually a base grade of non-purified hydrochloric acid. You use it to balance the pH in your pool, with the offsetting compound being soda ash. By keeping the pH level in the desired range, you maximize the effectiveness of the free chlorine from your chlorine tablets. I also use it to clean concrete and clean and etch surfaces prior to painting.

        • bobschacht says:

          Muriatic acid is actually a base grade of non-purified hydrochloric acid. You use it to balance the pH in your pool, with the offsetting compound being soda ash.

          Muriatic acid is also, IIRC, the acid that your stomach uses to start the process of digestion. May occasionally be responsible for heartburn.

          Bob in AZ

        • robspierre says:

          The H2O2 probably broke down, as you say. On the other hand, if you’ve left the acetone alone for long enough, I’ve been told that you are likely to have spontaneously formed TATP in the threads of the cap. Uncap it and BOOM. This is why they call the bomb squad when they find old chemicals in the back of a high school lab closet.

        • bmaz says:

          No, but on that alone I object to further searches, including sneak and peaks that the subject is not even aware of and storage of each purchaser in a database that implies they are potential terrorist; and that is what this is about.

        • kindGSL says:

          Or the freaky reaction you get from you banker that lets you know you are being investigated?

          For what? Your complexion, your name, your religion?

          In my case it was my activist politics. I don’t approve of war.

        • BoxTurtle says:

          Yeah, about 10%. Diluted with water. Many ways of handling that, chemicals that react with h20 and not h2o2 or running a less efficient reaction with a lower production. You’d need a LOT more. But it could be done.

          As for the government monitoring weapons, yes they can. While weapons of “hunting calibre” are currently excluded, anything above is generally ilegal or requires a permit. I can’t own grenades, automatic weapons (though I could get a permit), or field artillary. Likewise, I’m prohibited from from even attempting to produce simple nerve gas.

          There ARE field artillary in private hands! They’re used by ski patrols to set off controlled avalanches from a safe distance.

          So, yeah, I think the government has a perfect right (duty) to keep an eye on such things. They just need to obey the constitution when they do it.

          Boxturtle (That pesky “warrant” word again)

        • robspierre says:

          The difference between adding a taggant to explosives (what the NRA objected to) and doing dragnet searches through sales records should be clear. A taggant lets government investigators backtrace from a crime to seller of the weapon and from there, presumably, to the perpetrator or a co-conspirator. When an investigation starts, there is clear probable cause because a crime has already been committed and a particular substance is already implicated in its use.

          This is important, because a focused investigation that is tracing a particular batch of ammonium nitrate that was used in a crime has a high likelihood of success and a low likelihood of implicating an innocent person. An investigation that PRESUMES that the purchaser of a chemical will use it in a crime will mostly focus on innocent persons, divert resources that should be used to chase actual criminals, and convict a fair number of innocents. The investigative problem is logically the same as the false positive problem in medical testing. If you indiscriminately test the general population for a rare condition, the false positives will outnumber the true positives, making the test useless. For the test to have value, you have to focus on a subset of the population that is likely to have the condition because of symptoms exhibited or heredity or some such.

          If we start tracking every substance that can be used for improvised weapons, it will never end and law enforcement will do nothing else. Crime would flourish while the cops combed drugstore and hardware receipts. The number of weapons that can be made with household ingredients is, after all, practically endless. My fear is that at least some of the advocates of this 1984 approach to terrorism know that. If so, we’d do well to ask why, in that case, they advocate it anyway?

          We seem to forget one of the basic lessons that I learned in junior high, back when civics was still taught: our Constitution is a practical document, not a theoretical one. When it prescribes certain procedures for investigating and prosecuting crime while proscribing others, it does so with concrete experiences in mind. The founders knew what they were doing.

          Ammonium nitrate is not just any fertilizer, by the way. It is an explosive in its own right (look up the “Texas City disaster” and the “BLU-82″ bomb). So there were good reasons to tag it as an explosive. The fact that the Oklahoma City bomber was not familiar to the fertilizer dealer and was not a farmer should have given the dealer some pause when selling that quantity. Many would have refused and called the FBI. But tracking every farmer and mining engineer that buys ammonium nitrate makes no sense.

        • Mary says:

          I guess we’ll just have to wait for tne NRA (Nailpolish Remover Association) to get their act together with the right bumpersticker. I’m thinking this:

          Nail polish remover doesn’t kill people, people kill people.

          has a familiar ring.

          Seriously – IIRC, sec 215 does make it tougher to get not only library records (which was apparently driving Sessions et al nuts in the live blogging EW did) but also gun sales records, doesn’t it? I was waiting in the live blogging to see if any of the Dems were going to challenge Sessions to pony up with why it should be more difficult to track sales of guns than sales of dippity doo.

        • Mary says:

          YOu know, if something might make me begin to support extremist, invasive uses of police power – that might be it.

        • Mary says:

          Hehe – At one Mary Kay party (and yes, I have been drug to more than one) I was shunned bc of the winter, spring, summer, fall thing. They were talking about one of the women there and how she was a summer, with her blonde hair and all, and I piped up that her real haircolor wasn’t blonde.

          Valuable life lesson learned – at a mary kay party, some truths should go unsaid.

        • phred says:

          LOL — that’s hilarious. I probably would have made the same comment ; ) I’ve only had the misfortune of going to one of those things once. I can’t remember which season I was supposed to be. All I know is I looked silly no matter what color scheme they picked. And in any case, pink isn’t my color, so I wasn’t hankering for the caddy either ; )

          I suppose the upside after all these years is DiFi won’t be busting me for buying nail polish or its remover…

        • Rayne says:


          That has to be the funniest thing I’ve ever seen you write, Mary.

          Surprised you lived to write about it; somebody could have slipped concentrated H202 in your punch cup, goodness knows they had some handy.

        • PJEvans says:

          If she wasn’t a natural blonde, it should have been clear to everyone, unless she was close to blonde already. (I think I’m a ‘winter’).

          Sort of OT, an interesting editorial in the LA Times on conservatism as a religion. It explains some of the problems we’re having. (Wish the Ds in DC would read it and develop soms smarts.)

        • Mary says:

          (3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.

          Not so much lots of protection, I guess, but a real limited pool of who gets to make the requests.

        • behindthefall says:

          The concentration of H2O2 sold for first-aid use has been 3% whenever I’ve bought it. In the lab, 30% H2O2 (10X stronger) can be used to do things like dissolve polyacrylamide gels, if I recall correctly, but I can assure you, you do NOT want to get 30% H2O2 on your skin. It turns the top few layers to something stiff and bubbly — deep-fried-looking.

          I don’t know how the beauty products would affect the skin — I’ve seen 20% H2O2 concentration mentioned — but I’d certainly wear gloves.

          When you get up to 80% H2O2, you’re at the concentration used by the Germans in WWII as rocket propellant in some systems. Very, very nasty stuff to deal with, from what I’ve read.

          Rather amazing the different personalities that almost-water assumes as the concentration is changed.

        • MarkH says:

          my own generation, that is old enough to remember the “liberal” apathy about street crime and enforcement of other quality of life policing issues that led “law and order” in an era of escalating street crime to become “conservative” rather than general governmental concern.

          Street crime has been much more destructive than ’street’ crime.

          I don’t especially mind the government being enabled to track down weapons, bullets, bomb-making materiel or anything else which might be very dangerous in the hands of people. But, the NRA might prefer we not hinder the terrorists for fear we would also hinder ‘law-abiding citizens’. Hard to tell the two apart sometimes. Wasn’t Zazi entirely law-abiding? McVeigh?

          I don’t see how tracking this stuff interferes with the right of people to have and use it.

          Going further to keep records of it’s sale is akin to keeping records of gun sales and that infuriates the ’soft on crime’ Right.

          Perhaps the middle ground is having anyone who can sell that stuff inform the FBI if there is a sale of it, so the FBI can at least know where and when it’s happened. But, how do you differentiate between entirely legal and harmless sales and the more dangerous situations?

          That leads us right back to the 4th Amendment (after-the-fact searches) and perhaps the Brady Law which required licenses (before-the-fact). Are there licenses for the purchase of “bomb-making” stuff? What kind and quantity of stuff would qualify to be considered potentially dangerous? It’s not like a gun where only 1 is all it takes.

    • freepatriot says:

      so you’re telling me that people object to tracking explosives as closely as we track prescription medications ???

      you gotta fill out a ton of forms to buy certain types of acid, just because those acids are used to manufacture methamphetamine

      so I assume we live in a country that strictly enforces drug manufacturing laws, and ignores the regulation of explosives manufacturing

      fuckin great

  2. bobschacht says:

    Why can’t we just push for Feingold’s proposals and forget Leahy and DiFi? Why is Leahy just rolling over and playing dead?

    Is this just another case of Democrat’s pathological fears of being labeled “weak” on security matters? If so, I think some re-framing is in order. The Dems should start referring to Republicans as scaredy-cats, worry worts, and fear-mongers who think there are monsters under our beds, and who are willing to throw our Constitutional protections overboard for the sake of false promises of protection against “terrorists.” Time for them to start showing real strength, not their pathetic mewlings of support for every batshit crazy proposal the Republicans make to “strengthen” our defenses.

    Bob in AZ

    • JimWhite says:

      Why is Leahy just rolling over and playing dead?

      Perhaps he’s thinking about that very potent anthrax mailed to his office when he opposed the original Patriot Act.

    • emptywheel says:

      Because only 4 people supported Feingold’s amendment yesterday: Feingold, Durbin, Cardin, and (believe it or not) Specter.

      That’s not even close to a majority.

  3. WilliamOckham says:

    Ok, this totally OT, but I can’t resist. The incredibly right-wing Texas Attorney General intervened in a divorce case to force two gay men to stay married. The men in question got married in Massachusetts, then moved to Dallas. Now they want to get divorced and our homophobic AG is apparently terrified that if they get divorced it would mean Texas somehow recognized the legitimacy of their marriage. For his efforts, our AG was rewarded with a ruling that overturns the Texas ban against gay marriage. This judge will probably get overruled, but wouldn’t it be a delicious irony if the state was forced to legalize gay marriage because they tried to stop a gay divorce?

    • BoxTurtle says:

      I read that. The judge said it was most certainly within his juristiction to rule on the divorce of a marriage recognized in another state. The judge said that the Texas law was a violation of equal protection, anyway.

      This could be the case that finally gets all the anti-gay laws thrown out under the equal protection clause.

      Boxturtle (Rush’s head will explode so violently that he’ll violate arms control treaties)

  4. MadDog says:

    Legal Eagles, correct me if I’m wrong here, but EW has an “oops” here, and to my mind, a pretty big one:

    …requiring the FISA Court Judge to determine this information was actually relevant to the investigation…

    (My Bold)

    To my reading of Section 215 (per Wiki), any Federal district court judge or magistrate judge can signoff on a Section 215 Order:

    …Any order that is granted must be given by a district court judge or by a magistrate judge who is publicly designated by the Chief Justice of the United States to allow such an order to be given…

    The signficance of this is at least twofold:

    1. Judge-shopping. What, you don’t think the FBI knows which judges are easy marks? And regularly uses that tactic to the FBI’s advantage?

    2. If any Federal district court judge or magistrate judge can signoff on Section 215 Orders, compare and contrast their expertise in the realm of national security with those of the judges on the FISC.

    Now, even in spite of the rubberstamp tendencies of the FISC, I’d guarantee you that judges on the FISC have a level of national security expertise far, far above that of the average Federal district court judge or magistrate judge.

    When one combines items 1 and 2, one can readily imagine that many, if not most, Section 215 Orders get signed off by judges that have no clue.

    I sure hope our resident Legal Eagles can tell me I’m out to lunch. Fingers crossed, but not holding breath. *g*

    • bmaz says:

      My guess is it is not “any” district judge or magistrate, but it is a lot of them. Cannot remember the specifics, but there is some certification they can possess that allows them to hear evidence that does or may involve classified information. Don’t know the numbers, but it is a lot of the judges and magistrates.

      • MadDog says:

        Credit where credit is due!

        It was EW’s explanation of Section 15 orders being used by the FBI for fishing expeditions (We’re going to use this order to look in all these haystacks for any needles) as opposed to having any identified suspect.

        That coupled with the information that EW identified that the authority to signoff Section 15 orders had devolved down to the local FBI office’s Special Agent in Charge (SAC).

        There was no way that decentralization of authority was then going to be bottlenecked by having to funnel it all back through the Washington DC-based FISC.

        So the local SAC in the Minot, N.D. FBI office would be able to “reach out” to his/her favorite local Federal flunky district court judge or magistrate and get court approval for his/her fishing expedition on nail polish remover sales, trips across the border to Canada or North Dakotans accessing jihadi internet sites like FDL or the Great Orange Satan.

        Shorter Section 215 orders: “Where there are haystacks, there must be needles!”

        • MadDog says:

          Credit where credit is due!

          EFF takes note of EW’s efforts as well:

          Tip of the Hat, Wag of the Finger: PATRIOT Edition

          …We were especially disappointed–and made curious–by continued assertions by Senators Feinstein and Whitehouse that modifying the 215 standard would interfere with an ongoing classified intelligence program (the Administration has also noted the existence of this classified program that relies on 215 orders; Emptywheel at Firedoglake has a nice round-up up those mentions here). This kind of “you’d understand how I was voting if you knew the scary things I knew” posturing is Bush-era nonsense, and we agree with Senator Feingold that more information needs to be declassified so that Congress and America at large can have an informed debate about these spying authorities. He’s received the same classified briefings, and he noted several times yesterday that the classified uses of 215 amounted to an abuse of power…

    • MadDog says:

      Ok, now it’s my turn.

      I must apologize to EW because in doing further reading on Section 215 Orders, it seems that they must indeed be “approved” by the FISC.

      At least so says the DOJ’s OIG in their 2007 Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records (page 8 to 9 of the 112 page PDF):

      …After passage of the Patriot Act, between 2002 and 2005 a general process for requesting Section 215 orders was developed and refined, as were templates for the field offices’ requests for Section 215 orders and for applications to the FISA Court

      …The process begins when an FBI case agent in a field office prepares a business records request form…

      …Upon completion of the final version, signatures of designated senior FBI personnel are obtained and the package is prepared for the presentation to the FISA Court by an OIPR attorney.

      OIPR schedules the case on the FISC Court’s docket for a hearing and provides the FISA Court with a copy of the application and order in advance…

      (My Bold)

      The Wiki entry I originally pointed to made this assertion regarding Section 215 orders:

      …Any order that is granted must be given by a district court judge or by a magistrate judge who is publicly designated by the Chief Justice of the United States to allow such an order to be given…

      And much to my chagrin as I sheepishly admit, one should not assume that Wiki is an authoritative source.

      I’ve been pwned by Wiki and my own internet gullibility.

      For shame! For shame! *g*

      Again, my apologies EW!

  5. earlofhuntingdon says:

    DiFi, who statistically is unlikely to be around long enough to see the fruits of her legal labors, is normalizing the use of tools designed to combat foreign terrorists and helping to bring them to the police station near you. Pittsburghers saw a taste of that last week. Minnesotans had one last year during the GOP convention.

    In both cases, federalized and militarized forces abused citizens and spectators on the off chance that maybe, possibly, who knows, one of them might be disruptive enough to break the law. (Assuming the latter remains a requirement before the police can use deadly or near-deadly force.)

    Ms. Feinstein displays a Cheney-like fear of everything. She has the political position to inflict her fears on our laws and social rights. That’s the surest way to leave behind the rule of law and to enter the twilight, where terror and fears of it blind us to what our defenses against terror are meant to protect.

    I dearly hope the people of Carlyfiorina [sic] relieve us of her status as a public employee at their next opportunity.

    • kindGSL says:

      I have been living under her thumb for years.

      What is her attitude on DU?
      Voting record, NOT statements. I don’t trust anything she says.

  6. DWBartoo says:

    Yes, here in Pittsburgh we were presented a most-impressive show of force … the hovering helicopters, doors open with manned machine-guns sticking out is the image that remains. Yes, the message was very clear, indeed.

    The other very clear message was that some people matter and others do not.

    The cost to the actual people of Pittsburgh, as opposed to the ”cost” to the ”government” of the city of Pittsburgh (who brought in two thousand extra police officers and numerous ”security” forces) will not even be estimated. But the cost of lost work and access were substantial and real.

    The police deliberately created a climate of fear and suspicion, starting weeks before the ”event”.

    Actually, EOH, I appreciate the fact that you were aware that anything went on in Pittsburgh, at all.


    • kindGSL says:

      Well, maybe people will finally believe me when I say I was targeted by a black, unmarked, machine gun toting helicopter. Kaiser slandered me over it.

      It is really a shame when medical providers become involved in criminal cover ups like that in collusion with crooked lawmakers and police.

      Now that the black helicopter experience has happened to other people, and is on the record, maybe, finally, somebody will admit it might possibly have also happened to me. I was declared “delusional” for making this claim. It was used as a basis to destroy my reputation.

      Maybe Kaiser ‘Mental Health’ will now admit that they were wrong about that.

      But wait, to admit they were wrong would open them up to a lawsuit and damages. I guess they would rather not do that, they would rather just leave my life and reputation in complete shatters, my children motherless. That does seem to be what they wanted.

      Plus, apologizing for being wrong, or corrupt, would be a big change in direction. Corporate entities don’t usually do that.

  7. WilliamOckham says:

    I keep thinking about how easy it would be for the FBI to draw the wrong conclusion about some completely innocent activities. Let’s start with my house. This summer, my college age daughter decided to try her hand at homemade soaps, lotions, and cosmetics. Making real soap requires some pretty nasty chemicals (which she ordered off the internet on my credit card). Just this morning, my wife was threatening to fire our pool service because they keep screwing stuff up. If she does, I’ll buying a bunch of pool chemicals (largest batch possible because I hate going to the store). Oh yeah, guess what? My wife treats a patient who is a hairdresser and has no health insurance so she comes to our house to cut and dye my wife’s hair. My wife buys all the supplies from the local beauty supply store.

    Not to mention the fact that this summer I vacationed with one of the most wanted terrorists in the world. Ok, not really, but the guy has the same name as one (I have no idea why he’s not on the no-fly list, his name is phonetically exactly the same). Hell, I think I still have a copy of the Anarchist’s Cookbook lying around. I’ve certainly done internet searchs on it recently…

    • JimWhite says:

      I was convinced the FBI would visit me during the anthrax investigation. My startup company was growing a bacterium for biological pest control. We were exchanging DNA sequences for the bacterium with a lab in England and noting similarities to the anthrax toxin gene. Then, one of my scientists went back home to Iran to deal with some family business and sent emails back to us asking if the cultures had sporulated yet. Then the FBI raided Hatfill’s storage shed about 20 miles down the interstate from us…

    • bmaz says:

      Not to mention you are a commie subversive that participates in radical anti-government groups like Emptywheel; that alone probably already had you under scrutiny before your Zazi like shopping spree. Tamiflu purchase and possession may demonstrate your participation in biowarfare schemes. You are a lightning rod of terrist activity!

  8. earlofhuntingdon says:

    Oh, Picksburgh [sic] and I go way back. Shadyside, Squirrel Hill, CM, U-of-P. I remember when the Steelers were professional workmen, not just a football team.

  9. bobschacht says:

    Back to DiFi and the subject of this thread…
    At what point during the Obama administration do the Republicans stop voting in favor of government intrusion into personal privacy, and revert to their traditional opposition to such invasions into private matters? Whatever happened to “Your home is your castle”?

    DiFi is a DINO, voting more often on critical issues with Republicans than with Democrats. She seems to behave like a Scoop Jackson Democrat.

    Bob in AZ

    • emptywheel says:

      The Republicans are trying to take out all the remaining sunsets so Russ Feingold can’t be an asshole (in their minds) the next time this is up. They’re talking about the “leverage” it gives opponents of this stuff…

    • Teddy Partridge says:

      It would have been impossible for DiFi to launch her SF political career as a GOP. She is a Scoop Jackson Democrat; that’s why she behaves like one.

  10. ThingsComeUndone says:

    granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

    And yet the main ingredient for Meth that can only be made in a complex chemical lab is still legal.

    • bmaz says:

      Um, the labs are really not complex in the least, and those chemicals are all very common too. Are you advocating the elimination of common allergy and cold decongestants and antihistimines? Because pseudophedrine is exactly that, and it is also the common key precursor for meth. I guess we should make people register and give fingerprints to buy gasoline too, because it is a potential explosive.

      • ThingsComeUndone says:

        I thought pseudophedrine could only be made in complex labs? I’m sure that we can find a substitute drug that can’t be made into meth what were we using before?

        • robspierre says:

          Exactly. Weapons are all around us, if we want them. Dissolve polystyrene insulation (Bluboard) in gasoline and you have napalm. Mix iron filings and aluminum powder, and you have Thermite, a truly awesome incendiary. Any strong oxidizer would have explosive possibilities. The pre-teen boys of the nation (and probably the girls too, in this enlightened age) could supply any number of recipes.

  11. ThingsComeUndone says:

    acetone or hydrogen peroxide.

    Isn’t that nail polish remover and the stuff I clean my ears with this gives the feds the excuse to spy on everyone for no good security reason.

  12. MrCleaveland says:

    . . . granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

    Sheesh, you radicals crack me up. You are completely insane. You bitch when people don’t connect the dots, and you bitch when they do.

    You think there’s something evil about keeping an eye on people who buy inordinate amounts of potential explosives as if this is some great threat to your freedom to buy cosmetics or whatever.

    In short, you just like to bitch. Bitch bitch bitch. No matter what anybody does, you find something to whine about.

    Try to have a nice weekend.

  13. DWBartoo says:

    Not to mention … WO, that your computer has visited THIS site; even if you have not …

    Sneak and peak?

    Would you even know?

    If you are a ”good” and patriotic American, then you wouldn’t even want to know, but rather, you would trust that our betters always know better.

    But, but it can’t happen here …

    However, as goody two-shoes says, ”If you aren’t doing anything wrong, then you have nothing to worry about.” But then, goody works for the Brain Police so what ya gonna believe?

    The snark is heavy upon me today, alas.

    It must be the weather. Even the ducks are disgusted with the rain.



  14. DWBartoo says:

    Would you be a native, then, EOH, of the ’burgh?

    I am not, being a somewhat recent import.

    Where dost thou hail from now, EOH, if you don’t mind the saying?

  15. ThingsComeUndone says:

    The similarity in chemical structure to the amphetamines has made pseudoephedrine a sought-after chemical precursor in the illicit manufacture of methamphetamine and methcathinone. As a result of the increasing regulatory restrictions on the sale and distribution of pseudoephedrine, many pharmaceutical firms have reformulated, or are in the process of reformulating medications to use alternative decongestants, such as phenylephrine.


    Seems the problem is being handled I do like having to research stuff.

  16. earlofhuntingdon says:

    In a related topic, Scott Horton has a precis of the habeas corpus hearings in federal court for Gitmo detainees. As predicted by Seton Hall University, which has tracked Gitmo detainees for years, the vast majority of those detained, nearly 80%, were anything but the advertised “worst of the worst”. Thirty out of 38 have won their habeas hearings, though of the 30, Obama has not released 20 of them.

    In a comment as applicable to domestic surveillance powers DiFi is legislating as it is to the Bush and Obama policies about Gitmo, Horton says (emphasis added):

    All this supports the conclusion that for the Bushies, holding prisoners without charges in Gitmo was all about domestic politics and political crowd control. Real national security concerns played little role in their calculus, and justice none whatsoever.

    A good chunk of that motivation continues to apply to the Bahma & Rahma administration. Neither of that ruling biumvirate seems to have the learning curve of JFK when it comes to confronting the war at any price attitude of some of their military advisers.

  17. DWBartoo says:

    To, Things, @ 55


    It would appear that the Rahm desires to out-Rove the Karl.

    I imagine he kind of likes the comparison.

    And, were Obama to display umbrage … well, the bipartisan ship would sail away without him, then where would we be?/s


    • ThingsComeUndone says:

      Bush is identified with Failure. Karl aside from stealing elections helped Bush push through what law that worked? Rahm does wish for Karl’s Fixer Rep but even he does not want the the downside of Karl’s rep.
      If I had an hour to kill I could list the downside.

  18. prostratedragon says:

    I’m only semi-awake at the moment, but I think the CEO of google is on npr/atc just now trying to tell us that they never ever turn over mass quantities of our data to the gov unless there’s a proper and specific court order.

    Guess there’s an allout push forming.

  19. bgrothus says:

    Muriatic acid will also clean rust off of steel.

    And Hydrogen peroxide is a great deodorizer for pet urine. Mix 1 c. with 1 t. baking soda and a drop of dish soap. When it is on sale, I buy a bunch.

    I can haz terra too.

      • ThingsComeUndone says:

        DiFi would have the feds following ever construction worker Muriatic acid, acetone and hydrogen peroxide every garage in my neighborhood has this stuff.

      • Leen says:

        Have done some brick laying with friends who know far more than I do. Used Muriatic acid to do just that clean off the old mortar. Was amazed by the power of the acid.

        In our neighborhood
        Two students arrested in bomb scare at MHS


    • skdadl says:

      Can you explain a little further? How do you use it? Just to wash the floor? You’re not putting it in the boxes, are you?

      Teh kitteh litter is the bane of my existence. (I have six cats. Oh, drat — now the FBI knows — one of the Canuck connections is a crazy cat lady.)

        • skdadl says:

          Do you know, Petro, I actually gazed out on the Pickering plant today, twice, as I travelled to and from the centre of the universe to carry out my nefarious plans. The odd thing about that plant is that it kind of looms out of the haze over a very pretty series of beaches. What a way to spoil a beach, eh?

          I tried looming myself at upstate NY as we skirted the lake, but I doubt that anyone saw me. It’s funny to look at that horizon and know that so many friends are just on the other side of it.

  20. kindGSL says:

    My theory is they have been or are illegally spying on me, DiFi was the person who started it. Naturally, that is a conspiracy and a cover up on her part. It has to do with the drug war.

    I have the evidence for this theory very well documented in scattered notes on the public record in AlterNet where I have been commenting for many years.

    I have a lot of damages from the illegal spying I have been subjected to and I do expect justice.

    But when I complain about or strategize a way to get my grievances heard, DiFi and/or her friends find a way to prevent it. This has happened to me repeatedly over the years, actually ruining my life. I think what we are seeing is the cover up, so at this point in my life I’d ask, what will she do next?

    Her heart is NOT in the right place.

    Rev. Lauren Unruh
    THC Ministry

  21. rich2506 says:

    This conversation reminds me of a Harper’s piece of a few years ago where the author pointed out that people knew during the Prohibition Era that certain apples were really good for making hard cider with, but weren’t good for much else, i.e., they weren’t much good for eating. Years earlier, I saw a piece where someone listed the chemicals needed to process coca into cocaine and pointed out that the US could make a serious dent in the cocaine trade by tracking those who bought large quantities of these chemicals.
    The question is: Just how vigorously do we want to enforce the law? How far do we want to go with it? Myself, I think outlawing types of apples and DiFi’s proposals go WAY too far.

  22. Mary says:

    Can’t we solve this the way we do in Afghanistan? Send in the drones to bomb all locations having caches of nail polish remover? Sure, there might be a few civilian casulaties, but there’s no law against civilian casualties, right? DiFi?

  23. DWBartoo says:

    To Things @61

    Hopefully, Obama AND Rahm might spare a wee part of that hour to contemplate the truth of what you say and imply?

    Thus far, I do not perceive Obama as much vexed by ”downsides” so much as he and Rahm are concerned that certain among us, know, as it is so quaintly put, ”their place” in the ”proper” order (as in ”New World …..” perhaps?) of ”things”.

    The state of the economy, as it impinges on working (and producing) class human beings, seems of lesser concern to this administration than maintaining the worst of the Bush Excesses (for which there will be NO apology or even honest explanation), for example.

    But, Things, I do hope that you are correct and that Reason may, however belatedly, be rearing its head.

    We shall see. It didn’t appear to upset Obama when the tea-baggers (most non-racially motivated, of course) compared him to Hitler, so I cannot see how a comparison to Bush, coming from the leftish side, as it does, would unnerve him utterly or even a little bit. However, ”things” are at a desperate place, so it is worth a try and more power to it.

    (Of course, I’m going around saying how much like Bush Obama has turned out to actually be, and most everyone I speak with agrees. The question is; does it matter, in our political ”system” what many people, or even MOST people think or does it only come down to what a few, a very few, choose to do(for their own or, as they will speedily insist upon telling us, for ”the people’s” … ”security” or ”health and well-being”)?


    • kindGSL says:

      It matters in the next election cycle.

      If we are so unhappy with both the Republicans and Democrats that a significant number of Greens and Independents get elected, I would expect a BIG change in DC policy. A lot of DC Democrats are still in denial.

      Elections have consequences.

      Imagine how much more fun and exciting the Green convention will be compared to the Republicans. That smokin’ hot Green energy is the kind that makes changes happen. We can do it!

  24. Leen says:

    “Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply “in contact with, or known to” a suspected agent of a foreign power. He took out the “presumptively relevant” language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.”

    that reminds me…

    what ever happened to Jane “waddling for Aipac” Harman investigation?

    • Leen says:

      I thought the F.B.I. had determined that Harman’s contacts with the “foreign agent” who encouraged her to “influence” the Aipac investigation and upcoming 9 time delayed and then dismissed trial resulted in a completed “crime” I thought this is what the F.B.I had determined

      Anyone know what happened to that investigation?

  25. Leen says:

    How much of this has to do with American citizens joining the ranks of Al Queda or influenced by Najibullah Zazi? Or those who have left the country and are able to come back into the states or influence those still here.


    he video included pictures the American citizen who has become a Jihadi commander in charge of military training for Shabab, Omar Hammami, aka, Abu Mansour al-Amriki. He appears in the video (at left) supervising a small group of Somali Jihadists as they train in military tactics.

    Al-Amriki is an American convert to Islam, who was raised Baptist by his mother, though his father was a Syrian Muslim. He grew up outside Mobile, Ala. in the city of Daphne, from which he vanished. He reappeared in 2007 as a military commander for the Islamic Courts Union in Somalia.

    Al-Amriki recently released an audiotape in response to U.S. President Obama’s Cairo speech, advising the Muslim world not to be fooled by Mr. Obama’s “sweet talk.”

  26. earlofhuntingdon says:

    This from the New Yorker article on the Cameron Todd Willingham case of possible wrongful execution – in Gov. Rick Perry’s Texas – for the supposed arson deaths of his three small children. Late in the appeals process, the defense found a forensic chemist with a PhD from Cambridge University and long experience with military and domestic forms of combustion. Part of his resume included the following:

    Working on what he calls “the dark side of arson,” he retrofitted napalm bombs with Astrolite, and developed ways for covert operatives in Vietnam to create bombs from local materials, such as chicken manure and sugar. He also perfected a method for making an exploding T-shirt by nitrating its fibres.

    I can’t wait for the NSA and private IT firm job postings, looking for experts at writing software to analyze purchases of chicken manure and sugar.


    NB: “Astrolite” refers to several products; here, to a family of powerful explosives made from ammonium nitrate and hydrazine.

  27. timbo says:

    I hate those who hate the Bill of Rights. Why are they so afraid of the Bill of Rights? Seriously, this tendency for Democrats in power to basically morph into the Republicans they ran against is getting tiresome.

  28. Rayne says:

    And now from laughing to raw fear.

    Did you folks happen to see this?

    Imagine this in DiFi’s hands; DOJ says to her, “Hey, we have a means by which we can sort information anonymously and arrive at a likely suspect, without ever actually identifying the party first. The party would be anonymous until all the data on them came up as 99% probability; give us permission, pretty please?”


    • prostratedragon says:

      I’m having trouble getting the actual paper from the site, but the description makes it sound like something they could maybe use as a gimmick to claim that other minimizations aren’t necessary, since the target can be shielded until some probable cause threshold has been crossed.

      Note that it seems to be rather far from operational as yet. As a practical matter, does this add much to the already considerable load of fear the topic of snooping engenders, or is it still in the land of smoke and mirrors? Computing gurus?

      • Rayne says:

        Just because IBM is making a public statement about this technology doesn’t mean it’s not operational but in beta.

        Ever watch the movie Enemy of State? could even be used in a “training exercise.”

        And just because IBM announced this doesn’t mean there isn’t already something comparable; we the public might not have thought about it. I didn’t, and I monitor this kind of stuff for business purposes.

    • radiofreewill says:

      Rayne – Check this out: IBM Entity Analytics Software

      This software was pioneered and perfected in Las Vegas, where the Casinos were interested in ‘identifying’ patrons who were trying to ‘hide’ their identities from recognition – generally cheats and scammers.

      The software works anonymously to compare behaviors, associations, etc to ‘match’ two or more apparently different people as the same person, or otherwise somehow related to each other in nefarious ways.

  29. prostratedragon says:

    I suppose that also means that it is now public knowledge that in principle one’s own encryption can be breached.

  30. Hmmm says:

    In re the new hep DOJ website, I noticed this page on something called the Integrated Wireless Network.

    The IWN is a collaborative effort by the Departments of Justice, Homeland Security, and the Treasury to provide a consolidated nationwide federal wireless communications service that replaces stovepipe stand alone component systems, and supports law enforcement, first responder, and homeland security requirements with integrated communications services (voice, data, and multimedia) in a wireless environment. The IWN will implement solutions to provide federal agency interoperability with appropriate links to state, local, and tribal public safety, and homeland security entities.

    A parallel voice/data/multimedia network — nationally. So if the regular internet and phone are getting tapped at the AT&Ts of the world… as we know they are… then they may not be capturing federal / LE / emergency communications… and if they’re storing and later datamining all that… as we have every reason to suspect they are… then that kinda communications wouldn’t ever turn up in any of the data mining.


    Blade Runner has a line: “You know the score, Deck. If ya ain’t cops, yer little people.”

  31. orionATL says:

    al75 @1, ff

    thanks for your thoughtful comments.

    asking important questions is useful, though not aways immediately (or ever) rewarding.

  32. joanneleon says:

    Yeah, well the timing of those domestic terrorist arrests was awfully convenient. The first thing I thought when I heard about them was to wonder what purpose they’d be used for.

    Oh, yes, the PATRIOT Act is up again. Great. Makes me sick.

    DiFi is one of our senators on whom I would love to see an in depth investigation by journalists. Her ties to the defense industry and who knows what else, should be more widely known and I’d bet money that there are a lot of dots to be connected. There’s something that just doesn’t add up with DiFi. She’s more like an agent than a senator.

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