Hospital Hero Jack Goldsmith, the Destroyer of the Internet Dragnet, Authorized the Internet Dragnet

As I noted earlier, I think the re-release of Jack Goldsmith’s May 6, 2004 OLC memo authorizing Stellar Wind is meant to warn Congress that the Executive does not believe it needs any Congressional authorization to spy on every American — just in time for the USA Freedom Act debate in the Senate. This is exactly parallel to similar provocations during the Protect America Act debate. In the past, such provocations led Congress to capitulate to Executive branch demands to tailor the program to their wishes.

That earlier post, however, implied that this warning pertains primarily to the phone dragnet.

It doesn’t. The warning also applies to the Internet dragnet (and I suspect that stories about the heroic hospital heroes shutting down the Internet dragnet have been dramatically overblown).

One of the very few things — aside from the name STELLAR WIND, over and over, as well as references to content collection that could have been released after President Bush admitted to that part of the program in 2005, and the title Secretary of Defense — that has been newly revealed is this bit of the Table of Contents (here’s the previous release for comparison).

Screen Shot 2014-09-06 at 1.05.11 PM

 

It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment. That already makes it clear that part IV is about metadata. The last sentence of the first full paragraph on page 19 does, too. Page 7 makes it clear that Fourth Amendment analysis applies to “both telephony and e-mail.” Much later in the memo, it becomes clear this section — pages 96 to 100 — deals with Internet metadata.

In fact, the only substantive newly unredacted parts of the memo appear on 101 (PDF 69) and then from 106 to 108.

All of this new information makes it clear that Goldsmith asserted that Smith v. Maryland applied for metadata — and applied to both phone and Internet metadata. Remarkably, in that analysis, the government keeps at least one paragraph addressing phone metadata hidden, but reveals the analysis at 106-7 (PDF 74-75) that applies to Internet. (Goldsmith’s claim that Internet users can get providers to turn off spam, at the bottom of 107, is particularly nice.)

In perhaps the most interesting newly released passage (out of the roughly 5 pages that got newly released!), Goldsmith absolves himself of examining what procedures the government was using in its “metadata” collection.

As for meta data collection, as explained below, we conclude that under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), the interception of the routing information for both telephone calls and e-mails does not implicate any Fourth Amendment interests.85

85 Although this memorandum evaluates the STELLAR WIND program under the Fourth Amendment, we do not here analyze the specific procedures followed by the NSA in implementing the program.  (101/PDF 69)

I find this utterly damning, given that we know that, for the following 5 years, the government would lie to FISC about whether their “metadata” contained content. Even the OLC opinion built in the Executive’s ability to collect content in the guise of metadata!

In any case, what is clear — again, just in time to impact the debate over USA Freedom, for which prospective call record collection might or might not be limited to telephone content — is that rather than legally shutting down the Internet dragnet in 2004, Jack Goldsmith authorized it.

And that authorization remains in place, telling the Executive it can collect Internet (and phone) “metadata” whether or not FISC or Congress rubberstamps it doing so. Not only that, but telling the Executive this analysis holds regardless of how inadequate their procedures are in implementing this program to ensure that no content gets swept up in the guise of metadata (which of course is precisely what occurred).

So the Administration, in releasing this “newly unredacted” memo did one thing. Tell Congress it will continue to collect phone and Internet “metadata” on its own terms, regardless of what Congress does.

Only one thing could alter this analysis of course: if the Courts decide that Smith v. Maryland doesn’t actually permit the government to collect all metadata, plus some content-as-metadata, in the country, if they say the Executive can’t actually collect “everything there is to know about everybody and have it all in one big government cloud,” as 2nd Circuit Judge Gerard Lynch described the implications of what we now know to be Goldsmith’s logic on Tuesday. But the courts are going to stop analyzing this question as soon as Congress passes USA Freedom Act. Moreover, the last check on the program — the unwillingness of providers to break the law — will be removed by the broad immunity provision included in the bill.

Not only didn’t Jack Goldsmith heroically legally shut down the Internet dragnet in 2004 (clearly President Bush did make several modifications; we just still don’t know what those are). But he provided a tool that is likely proving remarkably valuable as the Executive gets Congress and privacy NGOs to finish signing off on their broad authority.

The hospital heroes may have temporarily halted the conduct of the Internet dragnet — even while telling Colleen Kollar-Kotelly she had to rubber stamp ignoring the letter of the law because Congress couldn’t know about the dragnet — but they didn’t shut it down. Here it is, legally still operating, just in time to use as a cudgel with Congress.

Update: One other thing other reporting on this is missing — and not for the first time — is that whatever change they made to the Internet dragnet, it was by no means the only change after the hospital confrontation. They also took Iraqi targeting out (in some way). And there was a later April 2 modification that appears to have nothing to do with NSA at all (I have my theories about this, but they’re still theories). So it is too simple to say the hospital confrontation was exclusively about the Internet dragnet — the public record already makes clear that’s not the case.

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22 replies
  1. bmaz says:

    “and I suspect that stories about the heroic hospital heroes shutting down the Internet dragnet have been dramatically overblown”

    You don’t say?! Huh, Who’d a thunk it?

  2. emptywheel says:

    Dunno what Jack did to lead the NatSec world to destroy his cred of late–maybe point out that Constitution requires an AUMF?–but they’re destroying it.

      • emptywheel says:

        Right. But that argument is sort of silly bc the most specious parts of Goldsmith’s analysis have been available for 5 years. The ONLY new stuff is 5 scant pages of metadata stuff, and that’s just Smith v. Maryland, nothing more.

        • emptywheel says:

          Frankly, I’m more interested in people 1) being accurate abt what is new here and 2) wondering why we’re getting that new stuff now, after 5 years.

          I mean, in every thread, I’m basically saying the same thing. I’m making a prolly futile effort to save the Constitution. And all you care about are SOME of your local teams.

          • bmaz says:

            1) Why pass up a new opportunity, and I am not new on the hammering Goldsmith bandwagon
            .
            2) I have no clue, and that is a great question, but think you may be right about Freedom Act timing.
            .
            3) I never mentioned that in this thread!! But…they are a local team, and you made me start watching Brittney Griner. Also, Schacht. But still.

  3. bmaz says:

    Also, hate to be a broken record, but there is still little reason to believe carriers would not seek indemnification agreements. They don’t need “immunity”; the government does, because they are on the hook.
    .
    Same as it ever was. And, same as before, all the fine young idiots will buy into this bullshit.

    • emptywheel says:

      I get your point abt indemnity. But the facts nevertheless show that after getting IMMUNITY for upstream, the telecoms more happily did what is very obviously illegal content collection in the US in upstream.

      The govt clearly has something similar planned for the dragnets.

      • bmaz says:

        Absolutely, it makes it easier for both. But the party with the big bone in this is, as it was before, still the government. Although the carriers probably like the income.

  4. greengiant says:

    The whole legislation, FISA and other court proceedings are theater of the absurd just like the hospital room play. As long as the judiciary keeps any Totos from pulling down the green curtain so it is.

    • wallace says:

      quote” As long as the judiciary keeps any Totos from pulling down the green curtain so it is.”unquote

      Indeed, even last week, during the final round of ACLU vs Clapper appeal, the three 2nd Circuit judges acted as though the case at hand was disturbing their peace. Notwithstanding the incredulous condescending opening statement by Judge Lynch at the outset, had I not just reviewed the “uncorrected Closed Captioning transcripts of that statement, being almost deaf, I would never known what was going on in this farce by reading the Closed Captioning in real time. Here is what was “transcribed”
      quote”
      THE CASE OF ACLU VERSUS CLAPPER. THERE IS SUFFICIENT INTEREST THAT IT IS BEING BROADCAST. I DON’T KNOW WHO WILL WATCH IT, IF ANYONE. TO THE EXTENT THAT IT WILL BE WATCHED BY PEOPLE WHO ARE NOT FAMILIAR WITH APPELLATE ARGUMENTS, I WANT TO SAY ONE THING ABOUT WHAT IS NOT LIKELY TO BE SEEN. THIS CASE IS ABOUT THE BULK DATA COLLECTION PROGRAM OPERATED BY THE NSA. WHAT VIEWERS ARE ABOUT TO SEE IS NOT A DEBATE ON THE MERITS OF THAT PROGRAM, WHETHER IT IS A GOOD THING OR A BAD THING. THE ISSUES BEFORE US START WITH THE GOAL ISSUES ABOUT WHETHER THIS COURT HAS THE GEORGIA STUDENT GESTURE ADDICTION TO RESOLVE THE QUESTIONS RAISED BY THE PLAINTIFFS. AND ALSO TO CONTINUE THE QUESTIONS RAISED BY THE PLAINTIFFS ABOUT THE PROGRAM. ABOUT WHETHER IT HAS BEEN AUTHORIZED OR FORBIDDEN BY SPECIFIC STATUTORY PROVISIONS OF CONGRESS. “unquote

      See that part that says…”….WHETHER THIS COURT HAS THE GEORGIA STUDENT GESTURE ADDICTION”… ? WTF???? In reality, the judge said..JURISDICTION!!! On and on..the entire transcript is riddled with gobbldygook. At the time I was watching it live, I thought..WTF is he talking about?

      However, and please, someone correct me if I’m wrong, the thing that really got me was the issue of “jurisdiction”. From what I understood, the whole appeal isn’t about the so called “merits” of the bulk collection program. It’s about WHETHER OR NOT, CONGRESS INTENDED BY STATUTE, TO PRECLUDE ANY JUDICIAL REVIEW OF IT WHATSOEVER!!!!

      Now, if I AM correct, someone needs to explain to me, how the Congress has the power to remove controversial issues of government programs, from Judicial review????????? I simply do not understand how that could possibly be. The real reason I ask this, is I came across this same issue when I read the CENTRAL INTELLIGENCE ACT OF 1947 in it’s entirety.

      At some point in the Act, it specifically removes ANY and ALL decisions by the Director of CIA…from ANY judicial review. WTF???? I suspect, this is the entire reason why even Congress can’t reign in the CIA, notwithstanding the NSA, of which I haven’t read the actual National Security Act yet..but I will now. Especially after coming across this extraordinary set of information 3 days ago. Read these and see if your whole perspective of the IC is any different. Not to mention the real reality of what is going on in America today.
      First, as I’ve mentioned over and over here, is Jim Garrisons assessment of the CIA/DOD as THE government. During the time Garrison was working on the JFK trial, someone else sent him some mindboggling information.

      http://www.prouty.org/letter.html

      Here is who he is talking about…

      Once you start digging in this graveyard, you won’t believe what you dig up.

    • wallace says:

      quote” As long as the judiciary keeps any Totos from pulling down the green curtain so it is.”unquote

      Indeed, even last week, during the final round of ACLU vs Clapper appeal, the three 2nd Circuit judges acted as though the case at hand was disturbing their peace. Notwithstanding the incredulous condescending opening statement by Judge Lynch at the outset, had I not just reviewed the “uncorrected Closed Captioning transcripts of that statement, being almost deaf, I would never known what was going on in this farce by reading the Closed Captioning in real time. Here is what was “transcribed”
      quote”
      THE CASE OF ACLU VERSUS CLAPPER. THERE IS SUFFICIENT INTEREST THAT IT IS BEING BROADCAST. I DON’T KNOW WHO WILL WATCH IT, IF ANYONE. TO THE EXTENT THAT IT WILL BE WATCHED BY PEOPLE WHO ARE NOT FAMILIAR WITH APPELLATE ARGUMENTS, I WANT TO SAY ONE THING ABOUT WHAT IS NOT LIKELY TO BE SEEN. THIS CASE IS ABOUT THE BULK DATA COLLECTION PROGRAM OPERATED BY THE NSA. WHAT VIEWERS ARE ABOUT TO SEE IS NOT A DEBATE ON THE MERITS OF THAT PROGRAM, WHETHER IT IS A GOOD THING OR A BAD THING. THE ISSUES BEFORE US START WITH THE GOAL ISSUES ABOUT WHETHER THIS COURT HAS THE GEORGIA STUDENT GESTURE ADDICTION TO RESOLVE THE QUESTIONS RAISED BY THE PLAINTIFFS. AND ALSO TO CONTINUE THE QUESTIONS RAISED BY THE PLAINTIFFS ABOUT THE PROGRAM. ABOUT WHETHER IT HAS BEEN AUTHORIZED OR FORBIDDEN BY SPECIFIC STATUTORY PROVISIONS OF CONGRESS. “unquote

      See that part that says…”….WHETHER THIS COURT HAS THE GEORGIA STUDENT GESTURE ADDICTION”… ? WTF???? In reality, the judge said..JURISDICTION!!! On and on..the entire transcript is riddled with gobbldygook. At the time I was watching it live, I thought..WTF is he talking about?

      However, and please, someone correct me if I’m wrong, the thing that really got me was the issue of “jurisdiction”. From what I understood, the whole appeal isn’t about the so called “merits” of the bulk collection program. It’s about WHETHER OR NOT, CONGRESS INTENDED BY STATUTE, TO PRECLUDE ANY JUDICIAL REVIEW OF IT WHATSOEVER!!!!

      Now, if I AM correct, someone needs to explain to me, how the Congress has the power to remove controversial issues of government programs, from Judicial review????????? I simply do not understand how that could possibly be. The real reason I ask this, is I came across this same issue when I read the CENTRAL INTELLIGENCE ACT OF 1947 in it’s entirety.

      At some point in the Act, it specifically removes ANY and ALL decisions by the Director of CIA…from ANY judicial review. WTF???? I suspect, this is the entire reason why even Congress can’t reign in the CIA, notwithstanding the NSA, of which I haven’t read the actual National Security Act yet..but I will now. Especially after coming across this extraordinary set of information 3 days ago. Read these and see if your whole perspective of the IC is any different. Not to mention the real reality of what is going on in America today.
      First, as I’ve mentioned over and over here, is Jim Garrisons assessment of the CIA/DOD as THE government. During the time Garrison was working on the JFK trial, someone else sent him a letter with some mindboggling information. Here is an exerpt..

      quote:”The Lansdale story is endless. What people do not do is study the entire environment of his strange career. For example: the most important part of my book, “The Secret Team”, is not something that I wrote. It is Appendix III under the title, “Training Under The Mutual Security Program”. This is a most important bit of material. It tells more about the period 1963 to 1990 than anything. I fought to have it included verbatim in the book. This material was the work of Lansdale and his crony General Dick Stillwell. Anyone interested in the “JFK Coup d’Etat” ought to know it by heart. “unquote

      Coup d’Etat indeed. Read the entire letter to Garrison here…

      http://www.prouty.org/letter.html

      The man he is talking about is THE consummate CIA spook of legend…Edward Lansdale.

      http://spartacus-educational.com/COLDlansdale.htm

      Notwithstanding Col. Leroy Fletcher Prouty himself, once you start digging in Lansdale’s graveyard, you won’t believe what you dig up. For instance:

      http://educationforum.ipbhost.com/index.php?showtopic=13678&page=2

      And then, there’s the beginnings of the Deep State. This is almost unbelievable.

      http://www.ratical.org/ratville/JFK/index.html
      and this…
      National Security Council Directive 5412

      Notwithstanding emptywheels excellent analysis of the current NSA/CIA bullshit, the underlying CIA/NSA mindfucking history finally brings the current National Security State into clear focus. I’d submit, Jim Garrisons assessment is dead on. And given the subject of this very post by emptywheel, I’d say we’re getting close to a revelation that will make the Church committee revelations look like a joke. Unless of course, the CIA, NSA, Leahy and the courts bury it forever.

      The fact is..even Hollywood couldn’t make this stuff up. Which brings me to this….

      http://www.theguardian.com/film/2008/nov/14/thriller-ridley-scott

      My apology to emptywheel for this post. This stuff is just too important to keep my mouth shut.

      • bmaz says:

        So, instead of a blog comment, you decided this was a forum for a rambling blog post of your own?
        .
        Dubious. At best.

        • wallace says:

          bmaz, regardless of your comment, my only intent was to add information relating to the current post. As to the “dubious” comment, that’s your opinion, which compared to a 50 yr veteran of the CIA who knows more about it’s history than most, I’d say your comment means diddley squat. Maybe if you actually READ the information instead of flapping your mouth, you might learn something. But that’s ok. You have the right to remain stupid.

  5. bloopie2 says:

    “But the courts are going to stop analyzing this question as soon as Congress passes USA Freedom Act.” Really? Maybe on some specific, narrow issues, but not on the underlying Fourth Amendment issue – that ‘s my interpretation. Have you vetted your assertion with assorted legal beagles?

  6. orionATL says:

    i wonder if all these “protect and save america by spying on americans” politicos and bureaucrats have ever stopped to think of the 1) possibly serious, widespread emotional consequences leading to 2) political consequences including widespread, and likely violent, citizen protests over being spied on,

    once the sense of being perpetually watched together with the inevitable gross natsec abuse and bumbling of this power

    has been burnt into our consciousness?

  7. anonymous says:

    There will be no substantive change through the legislative process. America is a domestic military police state engaged in multiple foreign wars of aggression. There is no domestic policy agenda except for repressing dissent and appropriating the people’s wealth. The time for reasoned discourse is finished. Now is the time to demand our rights and enforce them using any and all necessary weapons. Don’t work for a corporation. Don’t give data to a government. Don’t buy American products or services. Infiltrate, subvert and sabotage existing power systems. Arm for self defense. Prepare for guerilla warfare.

  8. ess emm says:

    Charlie Savage in today’s NYT

    it has remained murky what Mr. Goldsmith objected to in light of his willingness to bless the rest of Stellarwind based on a sweeping theory of presidential wartime powers.

    I thought that was a good observation.

    On twitter ew points out to Savage that the OLC memo and the NSA IG report dont tell the same story. ew, why is IG report unreliable?

    • emptywheel says:

      Working on a post on that, but there’s a lot in there that is obviously shaded to protect NSA or Michael Hayden.

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