The Phone Dragnet Classified Appendix

The government has been releasing a bunch of documents under FOIA while we’re all out celebrating: a classification review of the two earlier Section 215 IG Reports, as well as NSA’s reports to the Intelligence Oversight Board (though thus far, NSA has mistakenly linked to 1Q 2012 rather than 2Q 2012, which should be one of the most important reports for reasons I’ll come back to).

In this post I just want to review the phone dragnet classified appendix included as part of the 2008 DOJ IG Report on the use of Section 215. We’ve known this appendix — one of two attached to this report (the other, which may be as long as 16 pages, remains classified) — dealt with the phone dragnet since the phone dragnet was revealed. One thing this report provides are clear dates (which I used to update the dates in my phone dragnet tracker), including exact (in case of the first addition) and rough updates for additional “agents of a foreign power” that may be chained on.

Here are details of interest:

The fourth redaction on the 2nd page of the appendix — in the sentence starting “The queries would attempt to identify…” — is rather interesting syntactically. The redaction should read something like “terrorist associates” or something similar. But in this context, it ties the contact chaining much more closely to the contact-chaining process. Somewhere there must be language purporting to make this case specifically, but the redaction here is remarkably short to do so.

The appendix notes in the first full paragraph on page 3 that the dragnet application promised the NSA Director would inform the Intelligence Committees (but not the Judiciary Committees) about the dragnet. That’s curious because we have every reason to believe the NSA did not inform the Intel Committees about the Internet dragnet until after PATRIOT reauthorization, as reflected by this April 27, 2005 briefing to SSCI.  Presumably, the December 15, 2005 disclosure of the dragnet led the FISC to discover that Congress hadn’t been briefed.

The discussion of the additional terrorist group approved for contact chaining on page 4 seems heavily redacted. I wonder if NSA got Iran approved as early as 2006, with the later approvals being additional al Qaeda affiliates?

At least according to the changes noted in the dragnet orders, the only known addition in the second dragnet order was the pre-approval for FISA targets to be RAS seeds under the dragnet. I’m not sure whether the redaction here would refer to this change, but if it does, it is odd it remains redacted. But it’s also possible the government started collecting some other kind of telephony metadata in that order.

With the exception of the first order, it appears DOJ’s IG was working from the applications for the dragnet, not the orders. And the narrative of the dragnet appears to be silent on a number of changes, including the elimination of the compensation paragraph, the addition of spot checks (both in the November 15, 2006 order), and the exception of pre-authorized RAS approval for dockets 06-2081, 07-449, and PAA.

Most interesting still is the report’s silence on the change allowing NSA to put the BRFISA data in with other data for the purposes of analytical efficiency. That first shows up in the first dragnet order of 2008 — which the appendix helpfully clarifies was signed on January 10, 2008. It’s possible the IG Report doesn’t note it (or some of the other changes) because it was only supposed to treat Section 215 for 2006. Perhaps the other changes were done via amendment not shared with the IG (perhaps because of that scope issue). In any case, I find the timing of the order (which admittedly was dictated by the expiration date of the prior order). That would put the change — which I’ve speculated might relate to the roll-out of ICREACH — just days after Michael Mukasey signed the SPCMA order which allowed chaining on EO 12333 data on US persons. I increasingly believe all these things — ICREACH, SPCMA, and the insertion of FBI into the heart of the FISA process — were necessarily rolled out together.

One other silence of note: This appendix, at least, makes no mention of the 4- and 15-page October 31, 2006 opinions withheld from the EFF and ACLU FOIAs. That’s not surprising: if it had been central to the phone dragnet, the government probably would have had to release it. I wonder, though, if they pertain to the dragnet program discussed in the second, still unreleased appendix (and I wonder if that is the CIA money transfer program).


4 replies
  1. Peterr says:

    In his own inimitable style, Mr. Pierce noticed the same recent release of documents: “There are holiday document dumps and there are holiday document dumps. And then there is holiday document carpet-bombing from 30,000 feet.”
    Down further in his piece, he noted this:

    . . . the weaselspeak doesn’t help, either.

    In 2012, an analyst conducted surveillance “on a U.S. organization in a raw traffic database without formal authorization because the analyst incorrectly believed that he was authorized to query due to a potential threat,” according to the fourth-quarter report from 2012. The surveillance yielded nothing.

    What’s the “organization” in question? It would seem to have a cause of action here.

    IANAL, but I wonder about that same question. The NSA has admitted to a crime, but redacted the name of the victim who might want to hold them accountable. Presumably the DOJ could pursue this, but I wouldn’t hold my breath waiting for that to happen. Could someone like the ACLU file a case on behalf of “John Doe” to obtain the name of the organization, in order to allow the actual victim to decide if (a) they believe they have a cause of action, and if so (b) whether they wish to pursue it.

  2. wallace says:

    quote”I wonder, though, if they pertain to the dragnet program discussed in the second, still unreleased appendix…”unquote

    I’m sorry emptywheel, but sometimes you confuse me. How do you know WHAT is “discussed in the second, still unreleased appendix”..if it’s STILL UNRELEASED???

    quote”.. (and I wonder if that is the CIA money transfer program).”unquote

    Huh? What does the “dragnet program” have to do with a CIA “money transfer program”?

    However, it’s odd you should mention that today. After reading the Pike Committee transcripts yesterday, it appears this was also a major question the members of the Committee had for the OMB..clear back in the 70’s. While I understand time has not stood still since their inquisition of OMB and Colby by the committee, the transcripts really seem pertinent to everything going on to this day, especially the “torture report” and the fight between the SSIC and CIA. What is absolutely clear now, though, is the so called “oversight committees” are STILL exactly what Congressman Michael Harrington said they are…”willing patsies for the Agency, providing a “fictional cover” of Congressional approval of CIA activities. ”
    At this point, I’m still not finished reading these fascinating accounts of how the CIA really functions and how it keeps the Congress at bay. But they truely illuminate what little control Congress has, to this day, over the CIA and NSA. Which, as we know from the battle over the Senate Torture ZILCH. ZERO. Furthermore, what has come to light for how, from 1962 till the Pike Committee hearings, the OMB basically through their hands in the air and said..fuck it, we don’t have one shred of authority to investigate where, or how, the CIA is’s open money faucet.

    I know this shit isn’t relative to your discussions and analysis concurrent with today’s revelations emptywheel, but as an interested party who has strived since the Vietnam War to understand what and how the IC has become what it is, it seems clear to me, without understanding what has occured in the past, you have no relative point to understand how we’ve arrived at the point we are at today. In that light..for anyone who’s interested, here is a remarkable overview of that time period during the Pike hearings and Colby’s tenure at CIA. In fact, it is an eye opener from the horses mouth…

    carry on.

  3. wallace says:

    ps..I mentioned a few posts back about certain references to “Congress” in regards to CIA and NSA claims of “informing Congress”, when if fact, they didn’t even inform an ENTIRE oversight committee. Only “certain” members. I stand vindicated. In FACT…the Pike Committee made a BIG DEAL about this even back then. From the PIKE hearings…(talking about info given to “Congress” by CIA and OMB)
    (OMB)Mr LYNN:”We can give you some rough general ideas”
    Chairman PIKE:” Well give me a rough general idea about a situation where a ship goes off on an intelligence-gathering mission. I am not asking for specifics but how do
    you define what part of the cost of that operation will be called
    intelligence gathering?”
    (OMB)Mr LYNN:” I think that what you do is take area by area of activity and look at it and ask logically is its main theme intelligence or is it really so incidental to intelligence that it ought to be categorized some thing else.”
    Chairman PIKE :”Do you make that determination Mr Lynn?”
    Mr LYNN:” No we do not make this determination alone.”
    Chairman PIKE:” Who makes that determination?”
    Mr LYNN:” That determination is made by two different groups, essentially one is the Congress of the United States in its own appropriation and oversight process.”
    Chairman PIKE:” There is no way the Congress of the United States makes that
    determination because the Congress of the United States by and large
    does not know. You talk about a letter which you send to the chairman of
    the Appropriations Committee. I don’t see that letter.”
    Mr GIAZMO:” I have been on the Appropriations Committee since 1963 and I am on the Defense Subcommittee which deals with the intelligence community. I have never
    seen the letter. Up until last year I was never even privy to the
    briefings of the intelligence community. Your statement that the Appropriations Committee has performed oversight is just not so. Limiting
    it to certain Members of Congress makes a big difference.”
    Mr LYNN:”I agree. By your own rules in the Congress by your own decision in the Congress it has been decided.”
    Chairman PIKE:”It has been decided that a handful of men will have this authority.”
    Mr GIAZMO:” It is not Congress who isinformed It is a certain few Members”
    Mr LYNN:” I stand corrected You areabsolutely right Mr Giaimo.”
    Chairman PIKE We have established that it isnot Congress that makes this determination. Who is it?”
    Mr LYNN :”Certainly the Members of the Congress who by its own decisions have been madeprivy to these budgets are involved in that because if they had strong
    objections as to what is included or is not I am sure that the various
    heads of the agencies would be told about it and so would we. Now in the
    executive branch of the Government of course we will make
    recommendations in this regard I believe that the Director of Central
    Intelligence will also make recommendations in this regard as will the
    other agencies involved. Then ultimately I think the decision would rest
    with the President if there is a disagree ment amongst us or if we all
    agree but I think there is an important decision that should be made at
    a Presidential level.
    Chairman PIKE I would ask my timekeeper if my time
    is up I missed the signal …”

    My point being. It appears that not only are “certain members” given some kind of “trusted status” by the IC, they also have the power, unbeknownst to the other members, “allowed” to “amend bills outside of their respective committees “sphere of interest”…ie.. SOMEONE in the House(or maybe Senate?) Intelligence committees, added the latest 4th Amendment slap in the face, by adding an amendment, IN SECRET, to the Omnibus(?) funding bill. And I WANT TO KNOW WHO IT WAS!!!!! Cause if Senator Wyden KNEW this was happening..and voted for it..I’ve got some words for him.

    ok..I’m done. Carry on. :(

  4. tjallen says:

    In your ninth paragraph there seems to be an incomplete sentence:
    “In any case, I find the timing of the order (which admittedly was dictated by the expiration date of the prior order).”
    I’m sure you wanted to add a word like “interesting” or “curious” but I don’t want to put words in your mouth. Thanks.

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