In 2017, the Government Withdrew Three FISA Collection Requests Rather than Face an Amicus Review

Last year’s Section 702 Reauthorization law included a bunch of technical fix language describing how appeals of FISA Court of Review decisions should work.

In this post on that technical language, I speculated that Congress may have added the language in response to a denial of a request by the FISCR, about the only thing that would have identified the need for such language.

As one piece of evidence to support that hypothesis, I noted that one of the times the FISC consulted with an amicus (probably Amy Jeffress), it did not make the topic or the result public.

There’s one other reason to think there must have been a significant denial: The report, in the 2015 FISC report, that an amicus curiae had been appointed four times.

During the reporting period, on four occasions individuals were appointed to serve as amicus curiae under 50 U.S.C. § 1803(i). The names of the three individuals appointed to serve as amicus curiae are as follows:  Preston Burton, Kenneth T. Cuccinelli II  (with Freedom Works), and Amy Jeffress. All four appointments in 2015 were made pursuant to § 1803(i)(2)(B). Five findings were made that an amicus curiae appointment was not appropriate under 50 U.S.C. § 1803(i)(2)(A) (however, in three of those five instances, the court appointed an amicus curiae under 50 U.S.C. § 1803(i)(2)(B) in the same matter).

We know of three of those in 2015: Ken Cuccinelli serving as amicus for FreedomWorks’ challenge to the restarted dragnet in June 2015, Preston Burton serving as amicus for the determination of what to do with existing Section 215 data, and Amy Jeffress for the review of the Section 702 certifications in 2015. (We also know of the consultation with Mark Zwillinger in 2016 and Rosemary Collyer’s refusal to abide by USA Freedom Act’s intent on amici on this year’s reauthorization.) I’m not aware of another, fourth consultation that has been made public, but according to this there was one more. I say Jeffress was almost certainly the amicus used in that case because she was one of the people chosen to be a formal amicus in November 2015, meaning she would have been called on twice. If it was Jeffress, then it likely happened in the last months of the year.

I raise that background because of a detail in the FISC report released yesterday, showing its approvals for 2017. It revealed that FISC told the government on three occasions it might appoint an amicus. On all three occasions, the government withdrew the request rather than undergo a FISC review with even a limited adversary.

During the reporting period, no individual was appointed to serve as amicus curiae by the FISA courts. No findings were made in 2017, pursuant to 50 U.S.C. § 1803(i)(2)(A), that an amicus curiae appointment was not appropriate. There were three matters in which the Court advised the government that it was considering appointment of an amicus curiae to address a novel or significant question of law raised in proposed applications, but the government ultimately did not proceed with the proposed applications at issue, or modified the final applications such that they did not present a novel or significant question of law, thereby obviating a requirement for consideration as to the appropriateness of appointment of amicus. These matters are reflected in the table above as, respectively, a modification to a proposed order, an application denied in full, and an application denied in part. This is the first report including information about such occurrences. A similarly small number of such events occurred during prior reporting periods but were not discussed in the reports for those years.

In one case, the government withdrew an entire application after learning the FISC might appoint an amicus to review the proposed technique. In two others, the final order in one or another way did not include the requested practice.

These three instances are not the first time the government has withdrawn a request after learning FISC would invite adversarial review. While the court doesn’t reveal how many or in what years, it does say that a “similarly small number of such events occurred during prior reporting periods.” Given that there have been just two other reporting periods (the report for part of 2015 and the report covering all of 2016), the language seems to suggest it happened in both years.

That the government has been withdrawing requests rather than submitting them to the scrutiny of an amicus suggests several things.

First, it may be withdrawing such applications out of reluctance to share details of such techniques even with a cleared amicus, not even one of the three who served as very senior DOJ officials in the past. If that’s right, that would reflect some pretty exotic requests, because some of the available amici (most notably former Assistant Attorney General David Kris) have seen all that DOJ was approving with NatSec collection.

Second, remember that for at least one practice (the collection of location information), the government has admitted to opting to using criminal process rather than FISA where more lenient precedents exist in particular jurisdictions. That might happen, for example, if a target could be targeted in a state that didn’t require a warrant for some kinds of location data whereas FISC does.

Starting in 2017, the government would have the ability to share raw EO 12333 with the FBI, which might provide another alternative means to collect the desired data.

All of which is to say these withdrawals don’t necessarily mean the government gave up. Rather, past history has shown that the government often finds another way to get information denied by the FISC, and that may have happened with these three requests.

Finally, remember that as part of 702 reauthorization last year, Ron Wyden warned that reauthorization should include language preventing the government from demanding that companies provide technical assistance (which obviously includes, but is probably not limited to, bypassing or weakening encryption) as part of 702 directives. The threat the government might do so under 702 is particularly acute, because unlike with individual orders (which is what the withdrawn requests here are), the FISC doesn’t review the directives submitted under 702. Some of these withdrawn requests — which may number as many as nine — may reflect such onerous technical requests.

Importantly, one reason the government might withdraw such requests is to avoid any denials that would serve as FISC precedent for individualized  and 702 requests. That is, if the government believed the court might deny an individual request, it might withdraw it and preserve its ability to make the very same demand in a 702 context, where the FISC doesn’t get to review the techniques use.

Whatever the case, the government has clearly been bumping up against the limits of what it believes FISC will approve in individualized requests. But that doesn’t mean it hasn’t been surpassing those limits via one or another technical or legal means.

54 replies
  1. Tom Jensen says:

    Thank you, Marcy. You’re shining needed light on “..onerous technical requests..” with suspicion and insights which benefit our freedoms.

  2. Jill says:

    I have a question about the leaked Comey memos. Why would Comey leak memos that contain details of a conversation he had with Trump, who Comey knows is the target of an FBI investigation? Is that the way investigations are conducted by leaking evidence?

    • Trip says:

      Shouldn’t we ask Rudy Ghouliani about that?

      I thought all Trump Cult members clung to the “Subject” versus “Target”  description?

      • SteveB says:

        Trump culters should be asking themselves more difficult questions in the light of TheMaster’s latest remarks on the Comey memos and the Moscow lay over (snark)

        How did Comey come to so inhabit the mind mood and impulsiveness of the Donald,

        so as to plausibly craft in his memos of whole conversations

        several repetitions of the off the cuff fake-quasi-half-alibi to the piss party knowing that the plane records would prove the falisity of the point in 12 months or so?

        Because that is what you have to believe to accept Comey created a lie in his memos about that!

        Maybe Comey used his Harry Potter wand :

        “Conversatio Donaldis factorem execrabile!”


      • SpaceLifeForm says:

        I would not assume that GOP did the leak.

        It *looks* like that is the plausible explanation, but there are other reasons for other outlets.

  3. earlofhuntingdon says:

    “Michael represented me on that crazy Stormy Daniels deal.”

    — Donald J. Trump. 

    Perjury trap?  Then the Don threw Cohen under the bus again, because, you know, Michael has all those businesses….

    If I were Mikey, I’d be worried about more than my Fifth Amendment rights. Russian mob friends aside, he should start singing like a canary.

      • Trip says:

        As Marcy said, the gift for Melania’s birthday is admitting Cohen handled a case about an affair. What a thoughtful husband!

        Also, that there’s no need for a special master, since Cohen really doesn’t have anything in the way of attorney/client privilege, since he mostly ran his own businesses.

        • SpaceLifeForm says:

          And so Judge Wood appoints a Special Master (completely ignoring prosecution and defense suggestions (and potus)), killing off an appeal avenue.

          • bmaz says:

            It does not kill any “appeal avenue”. An appeal would center on filter or no filter FAR  more than the type of filter. Wood may have made the process “appear” to be slightly more neutral, but she did not affect the existence of appeal grounds in the slightest. At best, maybe slightly affected the ground they could, potentially, be played on, but not by much.

            • SpaceLifeForm says:

              I was not addressing filter/taint team issues, just Special Master.

              I agree there are issues going forward with regard to the Special Master and the taint/filter team.

              As I said before,
              who gets the first byte of the Apple?

              Cohen will not be able to argue *later* that there *should* have been a Special Master.

              It kills a possible avenue of appeal, plain and simple.

              Of course, now, Cohen and his team *will* be able to argue in the future that there should *NOT* have been a Special Master, even if that argument contradicts their initial position.

              They can’t have it both ways.

        • earlofhuntingdon says:

          It does suggest how his mind works.  The usual tools of circles, arrows and diagrams are a jumble, but his obsession is palpable.  He’s obsessed with fear.

          Here, the Don is obsessed with Clifford (and everyone like her) and is driven to shout about it on Fox – on his wife’s birthday.  Lots of therapeutic fun there.  But I suspect he’s also obsessed with the probable effect of admitted or proven adultery on any payout owed to Melania under their pre-nup.  Winners don’t lose, not even a bent dime.

          The money of Croesus, the sexuality of a satyr, the ego of a demi-god, the perfect appearance of a god.  The impossibility of fault.  All expressions of the great and powerful Trump of Oz.

    • emptywheel says:

      Yeah, need to head out but that interview is worth a full head pounding thread. What a shit show.

      • earlofhuntingdon says:

        Agree with Trip.  Look forward to your new thread.

        Little wonder that John Dowd got the fuck out of Dodge before Donald burned the place down.  No lawyer should touch the Donald shit show.  Even Roy Cohn would be daunted by such a self-destructive client.

        Cohen isn’t the smartest bulb in the pack, but even his mob friends should be telling him to spill the beans on Donald for the best deal he can get.  I suppose the problem would be whether Vlad agrees.  He might.  The obsession with denying Trump’s crimes, on the one hand, and finally coming to grips with how to make him accountable, on the other, will make the US look inward for years, and further debilitate our alliances.

        The Dems should take the route pioneered by A.J.P. Taylor in assessing German guilt for WWII.  Trump is no better and no worse than any of the other current Republican leaders.  Their priorities, exemplified by Scott Pruitt and his Koch patrons, are dooming the 99%.

        If they adopt Obama’s never look back, never criticize the other side approach, they’ll never regain political power.  The reason they don’t have it now is because they started caring only about Wall Street’s money and not caring about the state of Main Street.  A new crop of Dems could help them fix that flawed priority.

        • earlofhuntingdon says:

          Drugs or the lack of them?  Perhaps too many Big Macs and Cokes, and too little sleep.  But he sure did a full Col. Jessup and scream, “Goddamn right I did!”

          General Kelly must be daydreaming about the fly fishing in Montana he’s about to enjoy.  Honesty by the Don always makes him want to fire somebody, usually the first person he sees.

    • harpie says:

      Mike Scarcella @MikeScarcella 8m8 minutes ago  

      Now: SDNY says Hannity, Trump statements about ties to Michael Cohen ‘suggest that the seized materials are unlikely to contain voluminous privileged documents [link to doc]


      • harpie says:

        from the doc:
        [quote] [Footnote 3] […] These statements by two of Cohen’s three identified clients [Hannity/Trump] suggest that the seized materials are unlikely to contain voluminous privileged documents [end quote]

    • SteveB says:

      So while there  may be 2 “Peggy Peterson”s there was only 1 “David Dennison”. Nooo, Surely not!

      • Trip says:

        Dude is on a mission. He is a troll extraordinaire, eliciting responses. Without him, we wouldn’t have had the two conflicting statements by Trump. Sometimes, I just enjoy the lulz of his whole strategy.

        • SpaceLifeForm says:

          He has really solid info from various angles. Do not speculate about him at this time.

          I’m not saying that *you* were saying anything wrong, just don’t blow an op.

          It will come out in due time.

    • SpaceLifeForm says:

      $130K, $150k, that is Trump change.

      $1.6M, now we are “talking real money”.

      Who knew that Trump could get pregnant?

    • harpie says:

      [I’m going to put this timeline about Broidy here. Marcy and/or bmaz, please delete if you want. I won’t post links, but do have them.]
      Joyce Alene @JoyceWhiteVance Sessions turned to non-lawyer, convicted felon, GOP fundraiser Broidy for advice on US Atty appointments.
      Laura Rozen‏ @lrozen: It almost sounds like Cohen in cahoots with Davidson to blackmail Broidy?  
      Dan Merica @danmerica CNN RNC Chairwoman Ronna McDaniel accepted prolific Republican donor Elliott Broidy’s resignation from the RNC’s finance team on Friday 
      Laura Rozen‏ @lrozen: Does Cohen hang on as RNC dep. finance chair after SDNY today reveals he is target of months long criminal investigation by it and the FBI? / oh, and he coincidentally reached out to Broidy to propose he make the $1.6 million payment to the playmate 
      Popehat: Here’s the thing about Broidy’s statement. It’s . . . odd, the way it talks about Cohen.  It’s almost as if he is implying that Cohen was in on the blackmail, not really on his side.   /1 […] That . . . that is not normal. /3 It really reminds me of Arizona U.S. Senate Candidate Craig Brittain’s revenge porn scam: […]
      Avenatti on Morning Joe [3:55][…] Michael Cohen’s attorneys disclosed three clients in open court. Mr. Trump, the Trump Organization and Sean Hannity. Mr. Broidy was not disclosed in open court as one of Michael Cohen’s clients. […] So, I think at some point we’re gonna’ find out if in fact the client in connection with the 1.5 million dollar settlement was in fact Mr. Broidy, and I’m gonna’ leave it at that.  
      Adam Klasfeld@ KlasfeldReports: ‏In case this wasn’t clear earlier, Avenatti was saying that Stormy’s former attorney Davidson communicated with Cohen in the lead up to the raid. Avenatti also mentions that in his new filing. (See next tweet.)

  4. Avattoir says:

    The thread’s been (understandably) hijacked by fresh-broken news on the long-broken POTUS, to where it’s possible the subject matter of the post will not be discussed further. But I do want Fearless to know: I read it, I think she’s got the basics of this fringe-y tech-y subject about right and for the most part provides a plausible summary of the candidates for why these 4 applications under the current regime could have been withdrawn or abandoned. Also, this sort of discussion, at this level of sophistication, doesn’t often get posted outside of a government list.serv or discussed outside association workshops.

    I’ll add one more plausible. It wasn’t FISA per se, but did involve an ex parte application for a surveillance order, and I had bit part in it. It goes back several regimes, involving what since WWII has been so common it seems like it ought to have its own Constant: the fact that technology, regardless of who developed it, is never in lock-step with statute: almost invariably, at any given moment, the gadgetry has already sped so far ahead of legal procedure there’s abundant room for adventure and things to go wrong.

    On a large investigation engaging multiple agencies crossing multiple jurisdictions, each with its own counsel (some several), there was a plenary bull session in advance of what we all appreciated would involve advancing to the court what was certainly a new, probably novel, possibly radical position: in one relevant part, government would propose the law effectively provided for dilution from the constitutional standard in employment of a particular device.

    At some point an assistant counsel for a ‘lesser’ agency broke in with “a question”, then proceeded to read aloud verbatim a number of what many would call ‘motherhood’ passages from the FISA, then listed a few more, all as bearing on the court’s powers and duties, and concluded by asserting that, while she’d never actually made one of these applications, neither would the judge have any experience at all with this argument, so likely would carry on with acute attentio to the duties, expectations, powers and discretion those passages provided. “To what end?” she said; “To uphold the constitutional standard.” She also said something pithy like, That’s so wrong it almost certainly risks backfire.

    All this challenged the consensus view shared among the heavyweight agencies running the show: that the objectively scary underlying narrative would basically alarm the judge into granting the novel approach.

    I was junior myself, tho a specialist at this crap; but I was impressed, along with several others: some of us started in with something like harrumphs. But the heavy hitter presiding over the meeting didn’t indulge that or encourage more discussion, not even a show of hands. That suggests the decision to pursue this aggressively had been made by someone above all our pay-grades.

    What she predicted was close to what happened – tho the judge was concerned enough to allow the thing back for more work, in case all our brains could figure out how his analysis, which dove-tailed with what our Portia said, was wrong. So all the counsels and juniors re-convened in plenary for the postmortem, Portia was asked to repeat, break down and explain her reasoning. At some point there was an epiphany – that the application was well-intended but Never Have Been Sought.

    It ended up abandoned. I’m not able to say how it was reported internally, but I can say that I didn’t agree with that.

    • bmaz says:

      I recently concluded a joint state/federal wiretapping case. The amount of disclosure was insane. I am talking terabytes. But the matter hinged almost as much on state law under an argument based on Villa v. Maricopa County.

      To make a long story short, in federal court, might have faced a far different position. People have no idea of the amount of work and backup that goes into federal warrants. Or in fighting them as to what you have to comb through. It is amusing, however, to watch commenters that don’t do this work blather like they do.

      • Avattoir says:

        Well, exactly. I’ve been on both ends of warrants with supporting material of well over 100 pages – of NARRATIVE, not even counting attachments.

        The trend over the last generation(s) has been to anoint a single investigator as the central depository for receiving all the information from other investigators. The officer at the center is usually experienced and trained to do nothing in the way of ‘personal’ efforts at investigation more than coordination and articulation, serving as the primary firewall in defending against challenges to the grounds and the first of many to protect unnamed informants (The officer swearing out the supporting affidavit at one time, so long ago it’s hard to recall now, used to be informed at to the identity of confidential informants, but somewhere along the way that former requirement – to be able to attest personally to the reliability of informants – got beat down by persistence on the part of law enforcement, ‘almost’ as if that was the plan, which, of course it was.).

        So over the last quarter century, I seen a whole a lot of time and outside consultant resources pressed into service in attempting to track the various versions of the ultimate super-ceding affidavit, to determine how and when critical information was developed by the investigators and passed into the central hub.

        Sometimes it even pays off! Mostly not, but you just never know in advance of the effort. Regardless, it’s extremely expensive and enervating and takes a lot more organization and time than anything I could have imagined back in my law school daze.

        When this trend was still fairly new, back around 1990, the big bean counter outfits got into offering attorneys their “forensics services”, sometimes even including in-house legal analysis (which, okay, thanks, but as a criminal law specialist, I never trusted the quality of that.).  But – and I don’t known bmaz’ experiences with this track mine, but many specialists have told me the same thing I’ve seen generally – for me, the most interesting and useful outside forensic aids have come from former actual litigants who found themselves confronted with a choice of developing their own tools from scratch to respond to large private civil or government lawsuits, or else fold.


        • bmaz says:

          “Forensic services”. Heh. My law partner and I did our own warrant deconstruction. Independently first then compare and contrast where we were. It is incredibly painstaking and time intensive. But if you can flat out bust an affiant, or better yet, put them in a posture of having to burn a CI, then you have a little bit of gold.

      • SteveB says:

        It’s Charlotte Bronte’s “fault” that the name began to become popular for girls.

        I hazard you must be a very late contemporary of hers.

        The Yorkshire wrestling dynasty, The Crabtrees thought the name character forming for their male progeny. See Big Daddy, who was not wierd at all, honest!

      • Bob Conyers says:

        In a minor irony, it was a man named Leslie who delivered the line “don’t call me Shirley” in Airplane.

        • earlofhuntingdon says:

          Among other minor ironies, Marion was not a maiden in love with Robin Hood, he was a guy nicknamed the Duke, who made a lot of westerns.  But, surely, I go off topic.

            • earlofhuntingdon says:

              Aw shucks.  Let’s shutdown and recast with Charlton.  It will be worth the cost of the reshoots.

              So is EW off exploring schools in one state, in town or country, the Ivies or public ivies, the Seven Sisters, or that small college with the rugby team, the would be relocated Williams named after Lord Jeffery?

              • greengiant says:

                Gotta keep honoring those who practiced biological warfare against indigenous people otherwise too many questions about India, Korea, Vietnam, Yemen, Iraq, Iran, Syria, Central America etc to start at an arbitrary point in time.

                • earlofhuntingdon says:

                  Not what the comment was about.  EW is accompanying her niece on tours of college campuses.  She is an alum of that central Massachusetts college named after Lord Jeffery Amherst.

                  • greengiant says:

                    Same Amherst who pawned off small pox laden blankets.  Yes that would be exactly what the comment is about.

  5. earlofhuntingdon says:

    Strangely, for those living in the real world, Trump might have convinced himself that he was “getting out ahead” of various stories through his self-harming rant on Faux News this morning.

    Admissions about Cohen’s representation on the Clifford matter, throwing Cohen under the bus again by suggesting his “independent” business dealings were what drove the FBI’s investigation, admitting that he stayed overnight in Moscow, and so on. That’s Trump getting it all out – he hates all forms of discipline – trying to take the wind out of his critics’ sails and appeal to his base. Nothing to see there, let’s move along to what’s important.

    Those not smoking whatever Trump has in his stash probably see his actions differently.

    • Trip says:

      At the same time, more stories are being leaked about how rotten Trump was to Cohen. Even Avenatti is now taking a softer tack, playing the sympathy card for him.

      But Trump is the world’s greatest drama queen, I’ll give him that.

    • earlofhuntingdon says:

      Well, Trump probably wants it both ways.  He wants his conversations with Cohen covered by privilege, he wants to distance himself from a guy he thinks is going down. Too bad if abandoning the deal with Cohen about how to deny the Daniels thing makes Cohen vulnerable to a perjury rap, or so impugns his credibility that no jury or prosecutor believes a word he says.

      It’s just that if Cohen goes down, and having been thrown under the bus a few times by the Don, Mickey Medallions hasn’t a lot of reasons to stay loyal and STFU.

  6. earlofhuntingdon says:

    Donald Trump has spent the majority of his presidency defending himself to himself and attacking the federal prosecutors investigating him and those closest to him. (He’s spent the balance raising money, making money off the Feds, and defending his Cabinet appointments from their own improprieties and crimes.) Outside of a Kafka novel, who does that who hasn’t a laundry list of crimes to hide?

    Donald Trump is angry with the DoJ and FBI not because he doesn’t like them or they him – he chose their leadership. He is angry because they’re investigating him. They’ve been doing that since shortly after he took office. They continue to do that because a trail of possible crimes follows Trump wherever he goes.

    • SpaceLifeForm says:

      “They’ve been doing that since shortly after he took office.”

      I’d go with *decades* before.

  7. SpaceLifeForm says:

    “Importantly, one reason the government might withdraw such requests is to avoid any denials that would serve as FISC precedent for individualized and 702 requests.”

    My guess is that the 12333 info sharing is not working as planned.

    Betcha that most of the applications that were withdrawn were originated by NSA, not FBI.

    Alas, we do not have that data breakdown.

  8. SteveB says:

    Veselnitskyia an admitted informant for Russian Attorney General since 2013.

    So comports with Goldstone’s description re her as being connected to Russian chief crown(?)prosecutor.

    Only last week was she quoted in AP interview asserting that “if Mueller does not interview me he is not working toward the truth”

    She is a mischief maker and no mistake: and a very well connected one in all probability.

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