If It’s [Was] Friday, It Must Be State Secrets, Hiding Abuse of Power, in the 9th Circuit

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photo: Diane M. Byrne via Flickr

photo: Diane M. Byrne via Flickr

A quick word about scheduling. I’m going to take a break from Dick Cheney for a bit so I can hit some other issues. Later today or tomorrow, I’m going to take a look at the torture documents which Mary and MadDog started exploring in this thread. But then I need to turn back to PATRIOT in anticipation of the mark-up of the House bill, which is probably going to be on Wednesday.

But for the moment, I want to take a look at Eric Holder’s state secrets invocation yesterday.

The case is one of the remaining surveillance suits for the government’s “dragnet” collection of telecom signals, parallel to EFF’s Jewel case. The government had already invoked state secrets in 2007. But after the Jeppesen decision this spring, EFF reactivated the case (yeah, I’m sure this is not the legal term). And so now, to try to throw the case out again, the government is reasserting its state secrets invocation.

The case is interesting for a couple of reasons. First, the timing. The Administration is invoking state secrets under its “old-is-new” state secrets policy, something Holder focuses on in his statement on the invocation.

Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation.  We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.  The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion.  A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information.  Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

As such, it appears that DOJ wants to pitch this invocation as hopey-changey proof of the reasonableness of its new process.

But then, even in his statement, Holder is invoking state secrets in a 9th Circuit case assuming that the government will win its Jeppesen case. Holder describes how DOJ attempted to carve out a part of this suit that could go forward while still protecting state secrets.

As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so.

That statement assumes the Executive–and not the Courts–gets to decide how much of a case gets thrown out with a state secrets invocation, an assumption that flies in the face of the Jeppesen decision. Curiously, though, a statement making that assumption also ends with the kind of humility we haven’t seen from the Holder DOJ in related suits.

Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances.  As always, we will respect the outcome of that process.

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DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →

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Judge White Thumps The DOJ On EFF FOIA Case

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Well, you just don’t see this every day. As MadDog noted in comments last night, Judge Jeffrey S. White has entered a new order in NDCA denying the government’s request for a stay pending appeal in the telco documents FOIA case brought by the EFF. And he did it before the government ever even really asked for a stay!

This is the case Marcy discussed in The Blob That Passed Telecom Immunity after the internets went code red over an article in Wired that the Feds supposedly admitted telcos were an appendage of the government. To recap, the EFF filed a FOIA case against the ODNI seeking government documents evidencing telecom lobbying on immunity for corporate participation in Bush’s surveillance program. On September 24, 2009, Judge White found in favor of plaintiff EFF and ordered the records disclosed on or before October 9. On September 30, the government asked White for a stay so they could contemplate an appeal; White refused their request.

The EFF describes what transpired next in their press release:

On October 8, the day before the documents were due, the DOJ and ODNI filed an emergency motion asking the Court of Appeals for a 30-day stay while the agencies continue to contemplate an appeal. Around noon on October 9, the Ninth Circuit denied their emergency motion, telling the government it had to file for a motion for a stay pending appeal in the district court first.

Later that afternoon, the government filed again in the federal district court, but once again did not seek a stay pending an actual appeal. Instead, for the third time, the government insisted it could delay the release of telecom lobbying records while it considered the pros and cons of appealing. Briefing was complete by noon today, and Judge White denied the third attempt at delay this afternoon.

Get that? The government once again did not request a stay from Judge White. And he went ahead and ruled against them as if they had. See, I told you there was a reason they tried to bypass Judge White the first go around. I guess Vaughn Walker is not the only judge in NDCA that is fed up with the disingenuous pleading and concealment of unconstitutional activity the government relentlessly spews forth.

Judge White’s five page Order has some really sweet passages:

There has been no material change in circumstances and the Court is still not persuaded that it should exercise its discretion to stay its directive that Defendants disclose the disputed documents pending a decision whether or not to appeal the Court’s original Order. At this point, because a notice of appeal has been filed, a properly noticed motion for a stay pending appeal would have been appropriately filed before this Court. See Fed. R. Civ. P. 62(c). However, such a motion is not before the Court and Defendants have repeatedly reiterated that they have not filed such a motion. Regardless, the Court will address the substantive factors in ruling on such a motion in order to obviate the need for the parties to return once again to this Court before addressing the issue of a stay pending appeal.

White is tired of being jerked around by the disingenuous antics of Obama’s DOJ and he decided to move them along to the 9th; and why not, they are going there anyway, no reason to let them delay and obfuscate on the way.

Then White sets the table for dissection of the DOJ specimen: Read more →

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The Blob that Passed Telecom Immunity

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Update: Well, this is unexpected. The 9th said no to the government request for a stay, pending hearing what the District Court has to say about the emergency appeal. Now it’s back in the District Court for one more attempt at a stay.

About a million of you have linked this Wired story, with the headline:

Telephone Company is Arm of Government, Feds Admit in Spy Suit

There’s actually stuff in the government’s motion for an emergency stay that I find much more interesting. For example, the language attempting to protect agency discussions with Congress describe Congress as a mere appendage to the executive branch which did not, in 2008, have its own distinct Constitutional interest in legislation concerning matters in which the executive branch had been found to have flouted duly passed laws.

In this case, the communications between the agencies and Congress were part of a collaborative effort to formulate revisions to FISA that would be acceptable both to the President and to Congress, and the communications themselves were relied on to develop the Executive Branch’s positions regarding the appropriate scope and content of the proposed legislation. Given the purpose and role of the communications in the agencies’ own deliberations, the agencies have regarded their communications with Congress as intra-agency documents under the foregoing lines of authority.

[snip]

In Klamath, the Court declined to treat communications between a federal agency and Indian tribes regarding water rights as intra-agency because, unlike outside consultants, the tribes had independent financial interests in the subject matter of the communications, and those interests were adverse to other claimants. See 532 U.S. at 11-15. But the collaborative relationship between Congress and the Executive Branch in the development of new legislation has no resemblance to the relationship between the agency and the tribes in Klamath. In providing the agencies with information and views about legislative options for use in the development of the Executive Branch’s own legislative position, Congress was participating in a common effort with the Executive Branch to advance the public interest. [my emphasis]

While I realize that may, in fact, be an accurate description of how Congress acted during this debate–the intelligence committees, in particular, served and continue to serve as branches of the intelligence agencies they purportedly oversee–it is a fascinating comment on the state of separation of powers that Congress would be described by the executive branch as a mere appendage to the executive branch.

As to the telecoms, the real argument the government is making here is that the Court did not account for the invocation of Exemption 3 (sources and methods) in its ruling. Read more →

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PATRIOT Hearing Liveblog

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You can watch here.

Nice. Leahy started by referencing Obama’s statement to NCTC and references the Zazi and other arrests.

Leahy: We can’t go into what was said in a highly classified briefing. Need for prompt action and tools they need. Our bill increases use of congressional and judicial oversight.[repeats for emphasis] We have done so without undermining operational effectiveness of counterterrorism tools. On the last point I don’t think there would be any doubt following the highly classified briefing.

Oversight oversight oversight.

But no Fourth Amendment.

Leahy: On matters currently before Supreme Court we should move carefully.

Leahy’s pretty determined to push this through without Feingold holding things up.

Sessions: What we don’t all agree on is that the PATRIOT Act is not an overreach. Classified briefing. See if we can agree on language. Operation difficulties have been altered. Five amendments to address operational issues. One, on pen registers minimization. Remember, pen registers just pick up numbers, not content. [Uh, and names, and with email, probably subject lines.] Judicial review standards for NSL non-disclosure orders. "Judges should not have discretion" to refuse a non-disclosure order if govt meets the burden.

How nice that the ranking member of SJC wants to gut Article III of the Constitution.

LOL!! Sesssions trying to eliminate library exception with "the Fourth Amendment."

Sessions, on pen registers, claims no content. (Um, except for the subject lines of emails?)

DiFi: NYT wrote article about efforts to come together. Responds to problems found by courts–Doe v Mukasey–having to do with disclosure. On its face, limits to terrorists and spies makes sense. HOwever, for reasons that get classified very quickly, would unacceptably affect terrorism cases. Najibullah (she can’t pronounce) was case in point. I did not describe why. I asked Kris whether anything in this bill would obstruct any ongoing investigation. He said "I cannot say in public session." Briefing from head of NCTC. Both he and Kris said that new language solved trap and trace. Court very engaged. Not just perfunctory review.

BullSHIT!!! If the court can only review the FBI Agent’s theory, then it becomes perfunctory.

DiFi: Dead wrong when it says the bill has excesses that contribute nothing to making Americans safer.

Kyl: Unfortunate that some of our deliberations have to be in classified setting. Regrettable that great newspaper like Times can’t be privy to all those discussions.

(Talk to Lichtblau and Risen!!)

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Cell Phone Serials

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Scribe sent me this. It sort of makes you wonder who the NYPD is sharing this database with cell phone serial numbers with, doesn’t it?

The NYPD is amassing a database of cell phone users, instructing cops to log serial numbers from suspects’ phones in hopes of connecting them to past or future crimes.

[snip]

A recent internal memo says that when cops make an arrest, they should remove the suspect’s cell phone battery to avoid leakage – then jot down the International Mobile Equipment Identity number.

The IMEI number is registered with the service provider whenever a call is made.

And that data could allow a detective to match, for example, a cell phone used by one suspect to a phone used by another.

[snip]

The cell phone information joins another database of more than 20 million 911 callers that the NYPD has been building. It has paid off.

In one case involving a 911 call, detectives solved a burglary pattern after the suspect left a slip of paper with his cell number on it at a crime scene, Deputy Commissioner Paul Browne said.

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Sunsets Give Way to Dawn on Section 215

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In my last post, I showed how Section 215 authority grew over time, potentially in response to legal challenges to other domestic surveillance programs. I’m going to look at what that might mean for the expanded use of 215 authority in 2006 in a later post.

But first, I want to look at one passage in the 2007 IG Report on Section 215 that is relevant to current efforts to reauthorize PATRIOT. The report explains how–faced with a looming reauthorization fight–DOJ scrambled to actually make use of the Section 215 authority.

By early 2005, the Department faced the "sunset provision" of Section 215, pursuant to which the authority would lapse or "sunset" unless Congress affirmatively renewed the provision. In April 2005, FBI officials testified before Congress about the FBI’s use of the authorities provided by the Patriot Act. This generated a renewed emphasis within the FBI’s Office of  General Counsel on the use of the Section 215 provision.

By this point, the FBI was just using tens of Section 215 orders a year. In 2005 that expanded (partly through the use of combo orders designed to get subscriber information for trap and trace orders), and in 2006 it blossomed into at least one entirely new, secret program. 

Meanwhile, remember what else happened. The Senate Judiciary, after a hearing including testimony from Robert Mueller in April 2005, unanimously supported new limits on Section 215, which would have required some specific tie to terrorism or a foreign power before an order could be used to obtain records pertaining to a person. The House, on the other hand, supported small changes which nevertheless still allowed use of Section 215 to access records of people with no tie to terrorism. That fall, the conference process was gamed to make sure the House bill would prevail. 

In other words, at the same time someone was pushing Congress to keep the more permissive standard for Section 215, FBI was scrambling to actually use the authority–perhaps at least partly to justify its continued existence!

And somehow, out of that process, Section 215 came to be used to legally authorize entirely new programs in 2006, after the reauthorization process. 

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Bush’s Illegal Domestic Surveillance Program and Section 215

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I wanted to turn to the two IG Reports Glenn Fine did on the PATRIOT Act’s Section 215, the section that allows investigators to get business records and other tangible items. (2007 report covering 2002 to 2005; 2008 report covering 2006) The reports show an expansion of the way DOJ used the authority that parallels the known history of Bush’s illegal domestic surveillance program.

For the first two years after passage of the PATRIOT Act, not one 215 order was issued. Some were applied for, but all either were withdrawn because of legal ambiguities (could they be used to get school records?), legal reviews, and/or inattention. Then in October 2003, someone in DOJ focused effort on pushing some through, and one of the orders submitted in that month was approved in May 2004–though we’re not allowed to know the date (see page 17 of the 2007 report). Now, it appears the May timing may be coincidental; the order came out of efforts in October 2003 to start using this authority, not as a response to the hospital confrontation concerning Bush’s illegal domestic surveillance program in March 2004. But nevertheless, the first 215 order was authorized just as DOJ issued a new opinion authorizing parts of Bush’s domestic surveillance program on May 6, 2004, at a time when the data mining aspect of the illegal program had (reportedly) been halted by Jim Comey and Jack Goldsmith.

Later, for a year and a half, 215 orders started to serve a function with pen register/trap and trace orders. This was necessary for a period until the PATRIOT revision in 2006 because FISA pen registers didn’t give investigators all the information they wanted.

A "combo" application is a term used by OIPR to refer to a Section 215 request that was added to or combined with a FISA application for pen register/trap and trace orders. The use of the combination request evolved from OIPR’s determination that FISA pen register/trap and trace orders did not require providers to turn over subscriber information associated with telephone numbers obtained through the orders. Unlike criminal investigation pen register/trap and trace orders, which routinely included a clause requiring the provision of subscriber information, FISA pen register/trap and trace orders did not contain such provisions. Thus, while the FBI could obtain the numbers dialed to and from the target number through FISA orders, FBIA agents had to employ other investigative tools, such as national security letters, to obtain the subscriber information. (2007 report, 16)

Here’s what I understand this to mean (the lawyers in the crowd should feel free to correct this). The report explains there was a difference between trap and trace orders on phone numbers (and email accounts, presumably) in the criminal and FISA setting. In the criminal setting, you automatically got the names, as well as the numbers, that the target had contacted. You got to know right away that Rudy the street dealer had contact with Carlos the big time dealer. But with FISA, you just got numbers. Read more →

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More Zazi Justifications for PATRIOT

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For the second time today, the WaPo has a very obedient regurgitation of DOJ’s efforts to use the Zazi investigation to push for reauthorization of the PATRIOT Act. There’s the proclamation that the plot was very serious (which I am not challenging).

Attorney General Eric H. Holder Jr. said Tuesday that an alleged hydrogen peroxide bomb threat was "very serious" and "could have resulted in the loss of American lives."

[snip]

Holder declined comment on the next phase of the investigation, including the timing on possible arrests. He nonetheless expressed confidence that authorities had defused the alleged al-Qaeda-inspired threat, which may have been intended to kill "scores" of Americans. 

Tied to the call for Congress to "swiftly" reapprove PATRIOT provisions.

Holder used the occasion to call on Congress to swiftly reauthorize provisions of the USA Patriot Act, including tools that allow the FBI to conduct roving wiretaps of suspects, that have helped the bureau and its law enforcement partners in multiple cases. He nodded to the concerns of civil liberties advocates by acknowledging, "There’s certainly a conversation that can be had about, do they need to be reexamined," but Holder went on to assert that "the tools as they exist are valuable and not in a theoretical sense."

And, as with the WaPo article this morning, this article accepts the Administration’s focus on roving wiretaps, when that’s not really the focus of any challenge to PATRIOT reauthorization.

Say, Justice press corps … any chance you might point out that the real questions pertain to Section 215, NSLs, and data mining aspects of the domestic surveillance program?

Update: Oh!! Ask and you shall receive! Apparently a few members of the Justice press corps did ask these questions, though Holder didn’t answer them. From Josh Gerstein:

Holder said Foreign Intelligence Surveillance Act orders produced "much of the information" in the case, but he did not offer details on how Patriot Act provisions were used in the case. He also rebuffed questions about why those tools are superior to conventional authorities and why the Justice Department is vigorously opposing attempts in Congress to raise the threshold of proof needed to issue demands for information in connection with terrorism investigations.

"The existence of these tools is of great assistance to us," Holder said.

Update: Josh has put up a post with the explicit detail from today’s presser on Section 215. Here’s an excerpt, but go read the complete Read more →

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How Republicans (and a Few Democrats) Avoided Limits on Section 215

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In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215. 

Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.

But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.

The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.

Sensenbrenner’s bill introduced the following language into Section 215, requiring that,

the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.

But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.

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