How to Prove Intentionality of Domestic Surveillance?

/in /by

Given Russell Tice’s recent confirmations of many of our suspicions about Bush’s warrantless wiretapping programs, I wanted to point a footnote from the recently declassified FISCR ruling. In a paragraph addressing the incidental collection of Americans’ communications and dismissing the possibility (based on BushCo’s assurances) that the Bush Administration kept a database of incidentally collected information from non-targeted US person, this footnote appears.

The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice. (26)

I find the footnote interesting for a couple of reasons. It suggests that the collection–whether intentionally or not–is sweeping up communications from US persons (even while the ruling elsewhere suggests that there is much more leeway for targeting US persons in this than claimed). That is, it seems to admit the possibility that there might be a suit arguing that the wiretap programs intentionally target Americans, in which case the foreign intelligence exception it describes may be limited. 

But at the same time, it suggests how high the bar to prove that this entire program is just an attempt to evade the Fourth Amendment and wiretap Americans. Jeebus. If it accepts the Bush Administration’s assurances that there is no incidental database (which reads like a highly-parsed statement anyway), then how would we ever prove we were intentionally tapped?

Share this entry

Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

/in , /by

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.

[snip]

Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. Read more →

Share this entry

Russell Tice Confirms Everything We've Surmised About Bush's Illegal Wiretap Program

/in /by

 

Teddy linked to the stunning Russell Tice appearance on Keith O tonight. I wanted to add a few points.

First, Tice’s description of the program confirms everything we have surmised about the program. The program:

  • Established the means to collect all American communications
  • Analyzed meta-data to select a smaller subset of communications to tap further
  • Conducted human analysis of those messages

That is, the Bush administration used meta-data (things like length of phone call that have nothing to do with terrorism) to pick which communications to actually open and read, and then they opened and read them.

And of course, everyone’s communications–everyone’s–were included in the totality of communications that might be tapped.

Including–especially–journalists. We knew that both Christiane Amanpour and Lawrence Wright’s communications were tapped. Well, apparently so were every other journalists’.

Tice figured out that they were getting journalists’ communications when he realized that they were separating out all the journalists’ communications–but then ensuring that those communications were still collected 24/7.

I guess I was right to doubt the government’s claim–made to the FISCR–that it does not have a database of the communications of incidentally collected non-targeted persons, seeing as how this separate collection of journalists’ communications would be just that kind of database. (Unless, of course, the Bush thugs want to admit they deliberately targeted journalists as suspected terrorists.)

Tice also explained how BushCo evaded oversight by claiming some of this program was an intelligence program, and some was a military program. (Presumably, though, my smart Senator Carl Levin might notice something like that…) That strategy seems remarkably similar to the means by which BushCo legally justify the PAA (and presumably the program operating without Congressional sanction before it)–by using hybrid means of approving the program so as to eviscerate the Fouth Amendment. Nothing was too cute for these folks in their efforts to gut the Constitution, I guess.

Now that Tice has confirmed that all those journalists who have been poo-pooing the blogosphere for its concerns about the program in the last three years were being wiretapped, we may finally get some large scale press attention on this. Russ Feingold is going to look pretty damn smart for insisting that this is precisely what was going on. And perhaps, finally, we’ll have some accountability on these issues.

As I’ve been hinting, I did my small part in the hopes of accountability today; hopefully I’ll have the video done to explain tomorrow.

I’m beginning to believe we Read more →

Share this entry

Hints That the FISCR Plaintiff Is an Email Provider

/in /by

I’ve said in the last two threads on the FISCR opinion that the plaintiff is an email provider. Here’s why I believe that to be true.

On February 29, 2008, the Computer & Communications Industry Association wrote the Members of the House (which was then considering its own amendments to FISA, distinct from those that had been already passed in the Senate), lobbying against retroactive immunity. CCIA, recall, is the trade group for a bunch of tech companies, including email providers Yahoo, Microsoft, and Google. That letter reads:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

On February 29, 2008, at a time when the plaintiff in this case was almost certainly actively pursuing the case (I’ll do a review of timing in a later post), the trade association for the country’s biggest free email providers was lobbying:

  • Against retroactive immunity for those companies participated in violations of federal law, suggesting that the trade organization believed earlier cooperation was clearly illegal Read more →
Share this entry

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

/in /by

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yesterday, I showed that the government claims it doesn’t have a database of incidentally collected data from non-targeted US persons; and then I showed why that claim is not credible. Today, I’ll point to another big loophole in the government’s wiretapping program revealed by the FISCR opinion: the use of three or more different methods of getting around Fourth Amendment requirements of probable cause and particularity.

The opinion describes what it seems to present as abundant protections involved in the wiretapping at issue–noting that these protections are included not just in Protect America Act, but also Executive Order 12333 and certain classified procedures.

Beginning in [redacted] 2007, the government issued directives to the petitioner commanding it to assist in warrantless surveillance [redacted, redacted footnote]. These directives were issued pursuant to certifications that purported to contain all the information required by PAA.

The certifications require certain protections above and beyond those specified by the PAA. For example, they require the AG and the National Security Agency (NSA) to follow the procedures set out under Executive Order 12333 2.5 …, before any surveillance is undertaken. Moreover, affidavits supporting the certifications spell out additional safeguards to be employed in effecting the acquisitions. This last set of classified procedures has not been included in the information transmitted to the petitioner. In essence, as implemented, the certifications permit surveillance conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [my emphasis]

Much later, when the Court is testing the government’s claim that certifications in question qualify as “reasonable,” it again lists these several “safeguards.”

The government rejoins that the PAA, as applied here, constitutes reasonable government action. It emphasizes both the protections spelled out in PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted] procedures [redacted] outlined in an affidavit supporting the certifications. [my emphasis]

Understand–this opinion is not about whether PAA (or, more generally, a Congressionally-sanctioned wiretap program) by itself authorizes under the Fourth Amendment the actions the government required the plaintiff to take. It is about whether PAA + EO 12333 (the Reagan Executive Order laying out our intelligence program, plus the amendments to that EO) + redacted procedures submitted in conjuction with, but not mandated by, PAA fulfill Fourth Amendment requirements. PAA, by itself, does not fulfill Fourth Amendment requirements.

Read more →

Share this entry

The Government Sez: We Don’t Have a Database of All Your Communication

/in /by

I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence Read more →

Share this entry

FISA Appeals Court Opinion

/in /by

I’ll get to these later. But if you want to start reading them, be my guest.

Opinion

Order

One thing I note is that they’ve redacted the number of requests this telecom provider got (page 4). They’ve also redacted a description of their term "certain customers."

Also, the Court premised what it was saying on the fact that "The PAA was a stopgap measure."

Another point: there may have been a problem with the original certifications on these surveillance requests.

The original certifications were amended, and we refer throughout to the amended certifications and the directives issued in pursuance thereof.

Share this entry

The OLC Opinion Eliminating the 4th Amendment (and "Justifying" the Warrantless Wiretap Program)

/in , /by

Christy linked to HJC’s report on the Imperial Presidency earlier.

I’ll have a lot more to say about it. But for the moment I wanted to point to details it includes on the October 23, 2001 OLC opinion eliminating the 4th Amendment we’ve been looking for (this is the memo cited in Yoo’s Torture Memo). 

On page 74 it describes the memo:

On October 23, 2001, Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty in the Department of Justice’s Office of Legal Counsel (OLC) prepared a memorandum entitled: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”291 This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances. As such, the memorandum – though it does not squarely address detention policy — is consistent with the September 25, 2001, War Powers Memorandum which claimed for the president domestic war powers, anticipates the assertions of presidential power in the domestic detention context just a few months later, and anticipates the November 2001 conclusion that the president has the power to subject United States citizens to military commissions.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 Read more →

Share this entry

The al-Haramain Dates

/in , /by

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.)

In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. Read more →

Share this entry

Vaughn Walker Will Review the al-Haramain Document

/in /by

Threat Level is reporting that Judge Walker–who is overseeing several of the FISA suits against the telecoms and the government–will review the log of warrantless wiretapping of lawyers representing the Muslim charity al-Haramain to determine whether or not the lawyers were spied on illegally.

U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation’s spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful.

[snip]

Walker’s decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."

This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.

Share this entry