Administration Feeds Journalists Hints of More Secret Law … Journalists Instead Parrot “Russian Roulette” Line

Back in January, Charlie Savage revealed that in 2007 the FISC approved a secret interpretation of the Roving Wiretap provision, one of the provisions due to sunset Sunday night. To support a domestic content collection order targeting al Qaeda targets overseas, Judge Roger Vinson rubber-stamped DOJ’s argument that — because Congress had let it wiretap individual targets without naming each of the phones they were using, that also meant it could target al Qaeda as a target — without naming each of the phones and email addresses it was targeting until after tasking them [this sentence updated for accuracy].

Judge Vinson ruled that this procedure was a legitimate interpretation of FISA because of a provision Congress had added to the surveillance law in the Patriot Act. The provision created so-called roving wiretap authority, which allows the F.B.I. to get orders to swiftly follow targets who switch phones, telling the court about the new numbers later.

Public discussion of the purpose and meaning of roving wiretap authority has focused on targeting individual terrorists or spies who seek to evade detection. But Judge Vinson accepted a Justice Department proposition that the target could be Al Qaeda in general, so if the N.S.A. learned of a new Qaeda suspect, it could immediately collect his communications and get after-the-fact approval.

The government stopped using this particular application as it transitioned to Protect America Act (though it even grandfathered some of the existing targets tasked under the prior argument). But the premise — that DOJ can target entire communication nodes based on the argument that a specific target is using unknown accounts passing through that node — surely remains on the books.

This secret interpretation of the law may not be as outrageous as FISC’s redefinition of the word “relevant” to mean “all,” but it is nevertheless a fairly breathtaking argument, with potentially dangerous ongoing implications.

Yet, in spite of the fact that a top journalist (not some dirty hippie like me!) revealed this secret interpretation, the journalists who transcribed Administration claims that sunsetting PATRIOT would amount to playing “national security Russian roulette” have also transcribed Administration claims that they’re only using Roving Wiretaps individually.

A second tool is the “roving wiretap,” which enables the FBI to use one warrant to wiretap a spy or terrorist suspect who is constantly switching cellphones. Those two in particular are of “tremendous value,” the first official said.

We don’t know they’re using Roving Wiretaps to tap entire circuits anymore. But we know they can. That detail should be included in any description before a journalist parrots the Administration claim this is an “uncontroversial” authority. If it’s not controversial, it should be.

Ditto the Lone Wolf provision.

Reporters are reporting something that — 11 years after passage of the Lone Wolf provision — ought to raise serious questions (note: Lone Wolf was actually not part of the PATRIOT Act; it was passed in 2004 as part of the Intelligence Reform and Terrorism Prevention Act).

A third tool allows the FBI to surveil a “lone wolf” suspect who cannot be tied to a foreign terrorist group such as al-Qaeda. It has never been used, but officials said it is a valuable authority they do not want to lose.

That provision has been on the book for 11 years, and the FBI still says they have never used it but even though they have never used it is a valuable authority. It was not used in cases — such as that of Khalid Ali-M Aldawsari — that solidly fit the definition of a Lone Wolf. Even if the FBI found someone who they thought was an international terrorist but didn’t know to what group he belonged, they could get an emergency wiretap to help them find evidence.

So what “value” does the Lone Wolf provision have, if it’s not to authorize the wiretapping of Lone Wolves?

I think there’s increasing reason to ask whether this, like the Roving Wiretap, serves to justify some other secret law, allowing the government to spy on people against whom it has no evidence of ties to al Qaeda or any other terrorist group, but on whom it nevertheless wants to use its terrorist authorities against.

We’re on the fifth or so reauthorization debate where FBI has said “we don’t use this thing but we find it very valuable anyway.” At some point, we need to start assuming that when they say they haven’t “used” it, they only mean in the literal sense, and they’re using it to support some secret, unintended purpose.

Rather than parroting Administration claims of “Russian roulette,” shouldn’t journalists be asking why, after 11 years, their claims of necessity make no sense?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. P J Evans says:

    I would guess it’s used for activists (and maybe also for politicians). Because people who want clean air and clean water and no oil and mineral extraction in and around recreational and wilderness areas might be dangerous to the government.

    • A Reader says:

      @P J Evans:

      Of course, until there’s better, foolproof drone surveillance throughout the entire country, and everything’s nicely GISed, that’s probably the only place left to not feel watched intermittently by strangers looking for something to crucify you for for not pushing for the advocation of the status quo.

      • A Reader says:

        @P J Evans
        Sorry, hit enter too soon… It’s already started, the question is how long until that level of surveillance is totally unavoidable? What do we need, ‘crowdfunding for rainforests to hide from the government, offering us some aerial privacy’? ‘blood in, blood out to try to find infiltrators’? This is getting ridiculous. Wide open spaces are geospacially easy to monitor once they know where you are.

        Not a paranoid rambling, just some notes on the logical extensions coming our way if we don’t roll things back now (if it’s not already too late).

        I’m pretty sure prohibiting camping out on public lands was probably one of the initial precursors to this. Notably in many European countries this is still not outlawed. In the US, even on park lands, you have to register (and often pay). And of course if you don’t… then you have insanities like that New Mexico dude living in a tent up on a hill getting tased, shot, attacked by a dog, and booyah’ed.

        Ok, enough ramblings.

        • P J Evans says:

          I can’t remember a time when you didn’t have to pay to camp. That’s how camping areas are funded. And how cleanups are paid for – because a lot of people think they can do whatever they want when they’re camping out.

          • wallace says:

            quote”Not a paranoid rambling, just some notes on the logical extensions coming our way if we don’t roll things back now (if it’s not already too late).

            If we don’t roll things back now. un hunh. ok, What do you suggest “we” do? Tell ya what..ya wanna meet me at the corner of INSURRECTION BLVD. and REVOLT AVENUE?

            In the meantime, let me enlighten you to some people who ARE doing something to confront the insidious Facist/Totalitarian cancer that is growing on the ass of America. Let’s start with Mike Vanderbough. Who I’m sure you don’t have a clue who he is. However..you might want to spend some spare moments to find out exactly why your statement is laughable. You see..there are some people out that are staking their lives at this very moment to confront in no uncertain terms, the very enemy of your rights, as hour by hour, the ascendency of the DeepState, is committed to eventually remove the very the thing the Framers knew from the beginning..your “right” to own and BEAR the ONLY thing that every tyrant on the planet fears. A citizenry that is ARMED. In that light..try to see if you can get your head around this…

            http://sipseystreetirregulars.blogspot.com/

            ok, back here in the parallel universe of emptywheel.. damn. Indeed.

            geezus emptywheel. You are a tour-de-force. Daily. Frankly..you make fools of the entire Ringling Brothers IC circus. What I don’t understand is how the targets of your exposure dare step out in to the world at large, knowing they have already been proven to be the liars and corrupt chormasomally aberrant pondscum they really are.

            • A Reader says:

              Oh, and wallace — please don’t presume to know anything about me. I’m actually in favour of the constitution including ALL OF ITS AMENDMENTS. I agree that the people should be able and willing to bear arms (but that means knowing how to use them properly and ethically — and how NOT to use them); indeed the framers regarded the ability of the people to rise up *with weapons* to be a fundamental basis of the democratic republic.

              But are you going to rise up with your Sig Sauer or your Browning or even your AR to fight against… drones? Militarised SWAT teams who’ll shoot you (and your dog) on sight?

              You’re mocking insurrection. The country was formed on insurrection. Even the founders (and I hate overusing this word, nor am I sure of its relevance to what the country is (is it really America anymore?) and how grotesque the country has become now that it’s becoming a country run by corporations instead of its People) knew that: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” [Thomas Jefferson].

              Find someone better to attack.

  2. A Reader says:

    This is totally OT, but I wanted to say thank you for not lading your blog/site down with a lot of scripts, crap, advertisements, etc, and (while often having limited comments) not outright censoring your readers unlike most other places that deal with these sorts of topics.

    It’s appreciated.

    Keep on keeping on.

    • orionATL says:

      well, you got that right. thanks for noticing.

      emptywheel is the ONLY cite i have ever commented on with regularity that i have not been censored, kicked off of, or have left on my own volition due to (udually) self-protective criticism.

      recently i criticized an in-house journalist at the intercept; my comment dissappeared into the bit bucket.

      • orionATL says:

        the following phrase i wrote implies the opposite of what was in my mind at the time:

        “due to (udually) self-protective criticism” .

        that phrase should have read something like “due (usually) to the self-protective inclination of the website moderators/owner” .

  3. wallace says:

    Meanwhile, Greenwald still wields a journalistic Samurai sword so sharp it is only second to emptywheel..

    quote“Hot standby“: how they must have congratulated themselves when they coined that. Note, too, that the last thing the White House and NYT tells you to make you scared is that if the Patriot Act provisions lapse, it’d mean they’d have to “obtain a court order” before getting the records they want: frightening.”unquote

    https://firstlook.org/theintercept/2015/05/28/anonymous-fear-mongering-patriot-act-nyt-wh/

    Frightening. right. sheeezus. Excuse me while I go hide under my bed.

  4. wallace says:

    goddammit..LOL LOL LOL…[email protected].

    these fuckers are getting more laughable by the hour! #spareme

  5. A Reader says:

    @P J Evans: I’m not sure what the status is on the history of payments to camp. I have some vague memories of reading books on the history of, eg, the Appalachian Trail and I don’t recall there being payment mentioned for that. Optimally, it seems to me like parkland maintenance should be covered by tax dollars.

    I wasn’t merely talking about parkland camping though… Generally speaking, in the US, if you camp, now, you are generally treated to a whole host of vagrancy laws. Most other countries have a far more generous view of what ‘camping’ really means. I suspect a lot of this has to do with how land is owned in the US versus elsewhere but this is not a subject of expertise for me. I do however believe that, within reason, people should be allowed to camp, for instance, in undeveloped areas without harassment. This seems to be less and less common since about the 80s or 90s.

  6. A Reader says:

    @wallace, one last thing — we both know nothing’s going to make the surveillance state stop, because nobody with that much power gives it up willingly. It must be wrested from them — and it won’t be. Which really just leaves, I suppose, collapse, but even that has the ominous potentiality of being final — I don’t really want “final”. I also don’t want to bother finding a nice piece of farmland and be monitored by frigging Google Earth, either. Hiding doesn’t help anything. But fighting just makes you a target too.

    What do YOU suggest?

  7. Another Reader says:

    @orionATL:

    I am hesitant to believe in a site that apparently uses cookies to decide if you can or cannot have your comments post, and even then, you might not. Or is it the email address matching? Noone knows exactly who gets to post when or why, but it does seem like some things NEVER post even for those who do run the gauntlet and make it into ‘allowed to speak’ crowd. … Either way, it’s also a site which requires javascript while touting the use of noscript as healthy, on a site known to be Very Interesting (and one, if *I* were interested in them, would find code injection a happy useful tool further on down the network line, since how many people actually enable and disable their scripting preferences after a post?). I don’t think it’s done maliciously (at least not the latter) but it displays a reckless disregard.

    I am coming to believe most of the journalists who immigrated to the Intercept would have been far more visible and have stayed far more useful had they stayed in place in their previous journalistic positions — notice that they are snapping up a lot of the journalists most NEW leakers might go to, which is an interesting thing — not everybody in the CI community or the “regular people” community would want to go near a place likely closely watched, because it makes the opsec need even greater and the chance of getting caught out even higher. The best leaks come quickly, seemingly semi-randomly, and not through some central point of failure (even if it doesn’t fail, the potential is there). There’s also the fact that some people distrust TI itself, or don’t like how they handle the leaks they have already gotten — once they leak to a place, they mostly lose any say on how that leak gets presented — so a lot of that is theoretically about how the journalist himself/herself explored leads in the past and presented their stories (or are willing to farm it out to another trusted journalist if their own publication won’t allow the story). This isn’t a hard and fast rule, but something I’ve noticed over the years. Not everyone wants to come out like Snowden, or get caught out, like some of the other leakers have.

    Most of these journalists weren’t threatened with loss of job. Centralising it all is a strange thing. I don’t think this stuff is necessarily being done to destroy the credibility of the site or its journalists, but I suspect that that is how it’ll wind up playing out. Talk the talk, walk the walk. I do read TI regularly, but it strikes me as very very strangely done if the objective was to be an agent of change.

    To Marcy, directly — I’m not sure how I feel about your site (nor should how I feel about it matter). I’m not advocating for it anywhere, but I’m not disparaging it either.

  8. Another Reader says:

    I left out the biggest reason the concentration of ‘questioning journalists’ is a problem: Filter bubbles.

  9. Another Reader says:

    @orionATL: I actually can understand them not publishing criticisms if they worry it’ll start a massive cascade of ‘effects’ — even if I find a great problem with it. What I find intolerable isn’t that they censor comments about, eg, how broken some of this stuff is, but that anybody with an opsec background would agree with a lot of the (often pretty easy to implement) suggestions and they don’t *FIX* them. Saying ‘we’ve known the commenting system has been broken for a long time’ for instance displays willful disregard for fixing it, and willful disregard for those they censor about it. It begs the question WHY they AREN’T fixing it.

Comments are closed.