When FBI Director Jim Comey Ate 20 Journalists for Lunch, NSL Edition

Yesterday, charismatic FBI Director Jim Comey had what was alternately described as a “lunchtime interview” and a “roundtable” with a bunch of journalists. (See NYT, ABC, AFP, NPR, McClatchy, HuffPo, LAT, WSJ, Politico, AP)

Where he proceeded to eat them for lunch.

While he addressed many topics, it appears one of his key goals was to lobby to keep National Security Letter authority as is rather than adopt the NSA Review Group’s recommended changes.

Here’s how Politico described it (I don’t mean to pick on Josh Gerstein; his was one of the most thorough reports of what Comey said, even in spite of writing one of the single bylined stories; the outlets above all published some version of this story.)

“The national security letter is not only among the most highly regulated things the FBI does, but a very important building block tool of our national security investigations,” Comey said. “What worries me about their suggestion that we impose a judicial procedure on NSLs, is that it would actually make it harder for us to do national security investigations than bank fraud investigations.”

Comey said applying to a judge for a letter to track down an internet user who made a post indicating an interest in carrying out a terrorist bombing would take days or perhaps weeks, even if more judges were added to the court.

“Being able to do it in a reasonably expeditious way is really important to our investigations. So one of my worries about the proposal in the review group is it would add or introduce a delay,” he said. The director did say he believed there was merit to the review panel’s suggestion that such national security letters not come with a permanent bar on the recipient discussing the order with anyone other than legal counsel.

“We ought to be able to work something out that adopts a nondisclosure regime that is more acceptable to a broader array of folks than the one we have now,” he said.

Comey acknowledged that the FBI process for issuing such letters was too lax several years ago, but insisted it has since been fixed and is now rigorous and heavily audited. “No doubt the process for NSLs was broken in some ways six years ago or longer. It is not broken today. And so I don’t know why we would make natioanls [sic] security investigations harder in that respect than criminal investigations,” he said. He also said doing so would likely encourage his agents to go through prosecutors to get a grand jury subpoena instead—a process that doesn’t require the same number of approvals. [my emphasis]

Here’s the problem with this (aside from the hilarious claims that a program with no external oversight is the most “highly regulated” thing the FBI does, as bolded).

The journalists all, without an exception I’ve found, permitted Comey to misrepresent the Review Group’s two recommendations pertaining to National Security Letters (though HuffPo did include additional reporting noting that two of the Review Group members were Comey’s law professors and he thinks their emphasis is on gag orders preventing recipients from discussing the orders).

I described what the Review Group’s NSL recommendations were here (Julian Sanchez also did a good post).

But to understand why this is important enough for me to be an asshole over, it helps to see Review Group Recommendation 1, affecting the Section 215 dragnet, next to Review Group Recommendation 2, affecting NSLs.

Recommendation 1

We recommend that section 215 should be amended to authorize the Foreign Intelligence Surveillance Court to issue a section 215 order compelling a third party to disclose otherwise private information about particular individuals only if [it  finds that

(1)] the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

 

Recommendation 2

We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

(1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

[punctuation and spacing altered in brackets]

That is, Recommendation 1 (affecting Section 215) and Recommendation 2 (affecting NSLs) are — in the clauses changing the standard of review to eliminate bulk collection — substantively exactly the same. And while the NSLs require judicial review to get to any enforceable of standard of review — which is definitely one huge proposed change to the NSLs — viewed together like this, it is clear that at least as significant a goal of the Review Group is to end bulk collection under any authority.

Particularly when you consider Recommendation 3, which recommends real minimization procedures for NSLs.

The Review Group recommended judicial review of NSLs, sure. But it also recommended either preventing or (given the likelihood this has been going on) eliminating  bulk collection.

And yet a room full of — in some cases — very good journalists allowed the FBI Director to criticize what they all reported as the Review Group’s recommendation that NSL’s undergo judicial review without even mentioning he misrepresented the recommendation, addressing only a fraction of what the Review Group recommended.

Now maybe I’m wrong and the Review Group is not at all concerned about NSL bulk collection in spite of recommending eliminating it as their second recommendation. Maybe the voracious journalist-eating FBI Director really is concerned exclusively about judicial review (and willing to budge on gag orders).

Except by ignoring the bulk collection recommendation pertaining to NSLs, the journalists have allowed the Administration to eliminate the most important part of this debate.

Already, the press is portraying the resolution of the Section 215 collection as a decision between third party retention and telecom retention (with AT&T and Verizon still holding and being able to contact-chain most calls that occur in the country). When you combine that with the complete silence about the recommendation that bulk NSLs be eliminated, the journalists are not mentioning that the Administration’s proposed solutions for the phone dragnet (third party or telecom) and for NSLs (no change) preserve most of the aspects of bulk collection.

Jim Comey invited journalists from the nation’s top media outlets in for lunch, and he ate them for lunch them on bulk collection. With the result that the Review Group’s (and Leahy-Sensenbrenner’s) central recommendation to eliminate dragnets has all but disappeared from discussions of what will happen to the dragnet.

Update: See NSArchive’s call for NSL reform.

image_print
17 replies
  1. TarheelDem says:

    J. Edgar Hoover would be proud.

    Without fundamental change in the chartering laws, it continues. Without fundamentally dismantling the institutional culture, it will reassert itself.

  2. PopeRatzo says:

    I’m not sure any other problem in our society can be really addressed until we beat back this surveillance regime. Seriously.

    It’s the issue that has most changed my political views in the past year. Nothing else really matters to me. The most important other issue, income inequality, is directly related to the surveillance regime in that the top corporations are complicit, in some cases directly responsible for maintaining the surveillance mechanisms, and benefit from the loss of individual security.

    Emptywheel, thank you for hammering this issue. It might be too late to stop it, but we should fight it anyway.

  3. Don Bacon says:

    journalists from the nation’s top media outlets

    They wouldn’t be journalists from the nation’s top media outlets unless they drank the koolaid and got eaten for lunch (to mix a drink/eat metaphor). They would be ex-journalists, undrunk and uneaten.

    I hope none of them said terrorist bombing or interest in terrorist bombing or thinking about terrorist bombing. It would be National Security Letter time for them! Plus job-hunting.

    It’s all good if it’s against international terrorism, if anybody cares. But who does? As many people talk about terrorism as talk about Afghanistan. Nobody. But they both pay well, so the government goes with them.

    Did any journalists from the nation’s top media outlets have the courage to say that? They would be their last professional words, but what price courage?

    They’ll probably start a new forum instead, journalists against terrorism, and that way get another free lunch. Good for them.

  4. joanneleon says:

    I hope they listen to you. I find it pretty scary how the parameters of the debate have changed, as if elimination of bulk collection was not the original goal of the Amash/Conyers amendment that almost passed, and the Leahy/Sensenbrenner bill.

    I’m really afraid that Obama is going to offer up his proposed reforms, making it sound like serious changes but characteristically leaving some vague language and loopholes you could drive a truck through, and not real intention of real change. Think National Defense University speech about how he was going to rein in the drone program. Think John Brennan and how the CIA was going to refocus on spying not being a covert paramilitary droning gang. Think Obama talking about how Dodd-Frank was real Wall Street reform.

    Think about all the other times he finessed speeches to make it look like he was doing something big when all he was doing was stalling for time, running out the clock, and ultimately maintaining the status quo. He’s a master at this. After the speech his disciples run around cheering and pummeling anyone who suggests that he really didn’t change anything.

    Obama is a master at making people think he’s doing serious change and reform when he’s really not.

    If Leahy/Sensenbrenner significantly change or pull their bill because Obama promises he’ll do some reforms, it would be a disaster. I can’t even believe that anyone would believe a word the man says in his speeches.

    And of course, next week’s speech will be a trial balloon of sorts, leading up to his State of the Union speech which will be even more righteous and vague and, based on past history, not worth the paper it’s written on. His actions are what matters and what’s written into LAW is what matters. Congress better not roll over on this one. Journos better do a better job than with this Comey manipulation.

    I heard that Leahy slipped some language into a bill this past week related to cybersecurity, in reaction to the Target hacking. I haven’t gone and found the details yet.

  5. Jeff Kaye says:

    Marcy, do not contribute to the Government’s subornation of the press over surveillance by labeling in even the slightest way your passion for truth as something tantamount to being an “asshole” (“to understand why this is important enough for me to be an asshole over…”).

    Along with the importance of the abdication of the press on these issues is, it is also a classic lesson in how the press is led to the trough by the government’s carrot of access. (The stick is the implied threat of withdrawal of access.)

    I’m impressed by the fact Comey must stoop to the hoary old arguments of the “ticking bomb” argument, but less impressed by the fact the press let him get away with it. After all, that’s the same argument that was used to allow torture.

    With the failure to prosecute the criminals for the Vietnam/Laos/Cambodian war, Iran/Contra, and sundry other crimes (including building and supporting death squads in Latin America and Iraq), including those of domestic surveillance and lawbreaking (COINTELPRO), American society is left defenseless as the same government criminals continue to implement their dream of total control both domestically and abroad.

    All of this was foreordained when the press decided to ignore the statements of every human rights group that the central interrogation document in the land, the Army Field Manual, allowed torture. So that Obama’s “reform” of the interrogation scandals of the Bush administration placed a “humane” mask over what was actually monstrous. And the press went along. When I screamed that this was wrong, it was not only because I abhor torture, but because I knew where raping the truth would lead. Welcome to the full surveillance state. It’s not going away. And the future struggles to come will be truly awful.

  6. bloodypitchfork says:

    quote:”And yet a room full of — in some cases — very good journalists allowed the FBI Director to criticize what they all reported as the Review Group’s recommendation that NSL’s undergo judicial review without even mentioning he misrepresented the recommendation, addressing only a fraction of what the Review Group recommended.”unquote

    Journalists?????
    BWAHAHAHAHAHAHA…HOHOHOHOHOH..HEHEHEHEHEHEHEHEHE…HAHAHAHAHAHAHA!

    In what parallel universe? Even a computer program can produce stenography. They don’t know the meaning of the word. What these dimwits don’t know is Comey is a co-conspirator to a murder cover-up. And now has the entire FBI criminal cabal at his command. Now, let him see if he can eat THIS…..

    http://narcosphere.narconews.com/notebook/bill-conroy/2013/06/fbi-director-candidate-comey-complicit-dark-chapter-us-history

    http://narcosphere.narconews.com/node/1309

    Journalists indeed. Here’s a clue what a REAL journalist IS…Lincoln Steffens

    http://blog.longreads.com/post/how-one-magazine-helped-shape-investigative-journalism-in-america/

    However, in regards to the subject at hand…

    From the update:
    quote”Insufficient judicial oversight has been a long-standing concern with NSLs, which demand business records from a wide array of organizations for national security investigations, and its unsurprising to see them addressed by Obama’s intelligence review panel. The 2004 case Doe v. Ashcroft challenged the constitutionality of the letters, specifically their non-disclosure provisions, and the resulting ruling issued by Judge Victor Marrero found they NSLs violate the Fourth Amendment. This led to revisions of the USA Patriot Act, allowing for greater judicial review and clarifications to the non-disclosure clauses. However, there are still no requirements to seek approval or judicial review when sending an NSL, and the non-disclosure provisions prevent the full extent of the NSL program from becoming known. A strong argument can be made that even though the Patriot Act allows NSLs containing gag orders to continue being issued without judicial approval, they are nevertheless unconstitutional because they violate the Fourth Amendment’s prohibition on “unreasonable searches” of citizen’s “persons, houses, papers, and effects” without a warrant issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There is also the chance that because the NSLs are secret law, their reach goes well beyond what we now know.”unquote

    What am I missing here?????

    Did, or did not, Judge Victor Marrero find NSLs violate the Fourth Amendment??????? Can someone PLEASE tell me what’s going on here? How can Congress enact a law(Patriot act) that a Court specifically has already deemed those sections regarding NSL’s..UNCONSTITUTIONAL??? gawd, I need a drink.

  7. JTMinIA says:

    Sorry, but we all got NSLs and can’t discuss this issue with you. I’m probably going to jail for making this post.

  8. bloodypitchfork says:

    @klynn: quote”Mary had Comey figured out. She was spot on.”unquote

    Could you please explain or link to the source regarding Comey? I don’t recall who, but someone recently referred to someone named Mary, who I take it was a commenter or contributor to emptywheel, but I haven’t been cognizant of emptywheel very long so I’m not familiar with her relationship here.

    [email protected] Kaye..quote” Welcome to the full surveillance state. It’s not going away. And the future struggles to come will be truly awful.”unquote
    Indeed. I try to impart that thought to my friends and family, who in response, think I’m a nutcase for even suggesting it. Meanwhile, America is falling into the Totalitarinism abyss at freefall speed..just like Senator Church predicted. Living proof you can’t lead a horse to water nor can you stop the lemmings. Unfortunately, it’s not just America.

    Given the CEO of Cisco just gave a presentation of “The Internet of EVERYTHING”, aimed at the entire planet, I believe he gave a clue to the bottom of the abyss. Marvel at Totalitarinism on steroids. Imagine every conceivable way to spy on every human being on the planet. Including your trash can. Ha! At least Sarah Silverman mocked this insidious concept of the future, while verbally insulting Mr. Clueless at the same time….(see page 2 for Silverman)

    http://www.informationweek.com/strategic-cio/executive-insights-and-innovation/ces-2014-ciscos-internet-of-everything-vision/d/d-id/1113407

    Jeff, you are DEAD ON. Meanwhile, America is transfixed on Miley Cyrus’ ass while a hundred or so human beings are still being tortured at Guantanamo. That’s why I’ve applied for a copywrite for DCOTP(tm)..ie..DUMBEST COUNTRY ON THE PLANET..pending. Lemmings indeed. Btw, your site should be required reading in every classroom in the country.

    @JTMinIA: quote:”Sorry, but we all got NSLs and can’t discuss this issue with you. I’m probably going to jail for making this post.”unquote

    Oh, well, in that case, that tells me something. I just cancelled my subscription to your services. :)
    In the meantime, anyone out there who HASN’T received an NSL care to comment on my question in the previous post?

    Now, if we could only break the encryption to mass delusion.

  9. bloodypitchfork says:

    well sooprise sooprise sooprise. Now I understand why 9/11 HAD to happen.

    In 2000, George Tenet and Michael Hayden, in response to revelations over the Etchelon program, went before Congress and lied through their teeth. They knew then that the American public was becoming aware of CIA/NSA’s spying on American citizens, and something had to happen to take the heat off. Behold these lying sacks of shit….as Snowden has so eloquently proved since.

    http://cryptome.org/echelon-cinsa.htm

    I just wish Senator Church would have been there. Living proof his prediction fell on deaf ears.

  10. bloodypitchfork says:

    ps..77 comments and counting on Trashtalk. 12 here, including 3 of mine.
    That tells me something.

  11. klynn says:

    @bloodypitchfork:

    It has taken me a while to research and find a good example. My regrets for any delay.

    One starter comment from Mary about Jim Comey:

    http://www.emptywheel.net/2010/03/25/the-comey-college-of-prosecutorial-knowledge/#comment-171542

    Mary wrote quite a bit about Comey. She had much “figured” out.

    You can read a little about Jeff Kaye’s background here:

    http://www.americantorture.com/labels/ACLU.html

    Jeff has been writing on the full surveillance state:

    http://dissenter.firedoglake.com/author/valtin/

    It is quite a gift he joins us in the comments. He and Marcy together with bmaz tend to deliver a cogent writing combination.

  12. Jeffrey Kaye says:

    @bloodypitchfork: JBW Black will do nicely.

    I thnk the silence out there is due to denial and avoidance, given the lack of options out there to effectively oppose this government. Some of it is fear. The final stages of the turn to totalitarianism have not occurred yet. The bureaucracy awaits a massive crisis, or the appearance of a demagogue. To see how bad it still needs to get, study the McCarthy period.

    I think Marcy’s point is that for some groups, primary Muslims, it is already there.

  13. bloodypitchfork says:

    I’m already at least 5 posts behind emptywheel(the blog posts)as the speed they are delivered is 5 times faster than I can respond. But where was I. Oh. yeah.

    @klynn: quote:”It has taken me a while to research and find a good example. My regrets for any delay.
    One starter comment from Mary about Jim Comey:(snip)”unquote

    Cool, and no problem. And what a post it was. I’m glad someone was watching what this creep was doing. It confirms my suspicion what this criminal thug will do in the FBI. Still playing catchup on her others though. Man, I only wish I had found emptywheel back then. Thanks a million klynn.
    quote:”You can read a little about Jeff Kaye’s background here:(snip)”unquote

    Thank you. I’m always trying to learn about the various journalists who are trying to bring these war criminals to justice. To which, I learned something very profound about Bush and war crimes today. Another post though.
    quote”It is quite a gift he joins us in the comments. He and Marcy together with bmaz tend to deliver a cogent writing combination.”unquote

    I understand and stand in awe. I’m just glad I found emptywheels blog.

    @Jeffrey Kaye: quote” JBW Black will do nicely.”unquote

    As in? Unless you are referring to Blacks Law books or something, I’m not understanding your reference Jeff. Of course, I’m not an attorney so it wouldn’t do me much good anyway.:) We’re you referring to my question regarding the NSL/4th Amendment ruling?

    quote”I think the silence out there is due to denial and avoidance, given the lack of options out there to effectively oppose this government. Some of it is fear.” Again, in regards to the NSL/4th Amendment ruling? If so, are you saying what I’m thinking? Jeff, if you are saying what I think you are saying, this is EXACTLY what I am trying to confront before I DIE. To me..the rule of law is a “rule”, and under some circumstances, doesn’t exist unless you can force the tyrants into
    compliance by either mass rejection of their power by vote, the court or by gun. There is no in between. Jeff, I’m 69 years old, I’ve seen every single thing come down since 1955, and I deserve the truth before I die.
    Hence my questions.

    quote:”The bureaucracy awaits a massive crisis, or the appearance of a demagogue.”unquote

    Hahahahahahahaha! With all due respects Jeff. I don’t consider it a bureaucracy. I consider it the ruling class. And yes..they await the appearance of a demagogue. After all, even the Revelations predicts it.

    quote”To see how bad it still needs to get, study the McCarthy period.”unquote
    I did. In depth. In response, let me ask you this. How many SWAT teams kicked in doors in America and mercilessly killed innocent human beings in AMERICA at the height of McCarthy’s reign of terror? Last year..80 THOUSAND Swat assaults on homes in America occurred. What does that tell you? What it tells ME..is you better buy a gun…and soon. Before the collectivists make it illegal to defend you life and liberty. P E R I O D.

    quote”I think Marcy’s point is that for some groups, primary Muslims, it is already there.”unquote

    I understand. Unfortunately, at this point in time, I believe it also includes whistle blowers, dissidents, journalists, and even other sovereign nations governments that when confronting the continuance of the United States Supranational Sovereign Corporatacracy power, will confront the full onslaught and weight of their insidious agenda. In no uncertain terms..I believe historian Henry Steele Commager assessed the Church Committee’s legacy best. Referring to executive branch officials who seemed to consider themselves above the law, he said, “It is this indifference to constitutional restraints that is perhaps the most threatening of all the evidence that emerges from the findings of the Church Committee.”

    Hence my question. Thank you all for replying.

Comments are closed.