The Government Tries to Quickly Force Feed Its Dog Its Phone Dragnet Homework

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I have been following the government’s claims that it needs to make the phone dragnet plaintiffs look bad preserve evidence in the phone dragnet cases. I noted:

  1. NSA’s claim, on February 20, that it might need to preserve the phone dragnet information
  2. EFF Legal Director Cindy Cohn’s observation that NSA already should have been preserving phone dragnet data because of earlier orders in EFF cases
  3. NSA’s own claim, in 2009, that it was under a preservation order that might prevent it from destroying illegal alert information
  4. NSA’s own quickness to destroy 3,000 violative files in 2012 when caught retaining data in ways it shouldn’t have been
  5. NSA’s rather bizarre claim — given their abysmal track record on this point — that a great concern about defendants’ rights meant they had to keep the data
  6. The likelihood that, that claim of concern about defendants’ rights notwithstanding, NSA had probably already destroyed highly relevant data pertaining to Basaaly Moalin
  7. FISC’s equally bizarre — given their own destruction of any normal meaning of the word, “relevant” — order to force the government to continue destroying the dragnet data

That last bit — FISC’s order that the government go on destroying data in spite of existing protection orders to retain it — happened Friday.

Since Friday, the EFF has been busy.

First, it filed a motion for a Temporary Restraining Order to retain the records, pointing out that there have been two preservation order in effect for at least 5 years that should govern the phone dragnet.

There has been litigation challenging the lawfulness of the government’s telephone metadata collection activity, Internet metadata collection activity, and upstream collection activity pending in the Northern District of California continuously since 2006. The government has been under evidence preservation orders in those lawsuits continuously since 2007.

The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv- 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv- 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation order remains in effect today as to that case.

In 2008, movants filed this action—Jewel v. NSA—and this Court related it to the Hepting action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel evidence preservation order remains in effect as of today.

EFF also filed a similar motion with the FISA Court.

And it provided all the emailed reminders it sent the government, starting on February 26 after the government filed a motion with FISC to destroy the data, that it was already under a preservation order. On February 28, DOJ asked EFF to hold off until roughly March 5. But DOJ did nothing at that time, and EFF followed up again on March 7, after the order, asking how it was that the FISC didn’t know that existing preservation orders covered the phone dragnet. In response, DOJ’s Marcia (Marcy) Berman got dragged back into the case to give this convincing response.

[T]he Government’s motion fo the FISC, and the FISC’s decision today [March 7], addressed the recent litigation challenging the FISC-authorized telephony metadata collection under Section 215-litigation as to which there are no preservation orders. As we indicated last week, the Government’s motion did not address the pending Jewel (and Shubert) litigation because the district court had previously entered preservation orders applicable to those cases. As we also indicated, since the entry of those orders the Government has complied with our preservation obligations in those cases. At the time the preservation issue was first litigated in the MDL proceedings in 2007, the Government submitted a classified ex parte, in camera declaration addressing in detail the steps taken to meet our preservation obligations. Because the activities undertaken in connection with the President’s Surveillance Program (PSP) were not declassified until December 2013, we were not able to consult with you previously about the specific preservation steps that have been taken with respect to the Jewel litigation. However, the Government described for the district court in 2007 how it was meeting its preservation obligations, including with respect to the information concerning the PSP activities declassified last December. We have been working with our clients to prepare an unclassified summary of the preservation steps described to the court in 2007 so that we can address your questions in an orderly fashion with Judge White, if you continue to believe that is necessary.

After San Francisco Judge Jeffrey White ordered the government to explain itself, the government changed the timeline, suppressing the fact that they told EFF to hold off on making any filings. It also said it would just have to keep destroying data.

Therefore, in light of the FISC’s March 7 order, the Government currently remains subject to orders of the FISC—the Article II Court established by Congress with authority to issue orders pursuant to FISA and to impose specific minimization requirements—which orders require the destruction of call-details records collected by the NSA pursuant to Section 215 that are more than five years old.

In light of the obligations created by those orders, on March 7, 2014, upon receipt of the FISC’s decision, the Government filed a notice in First Unitarian and other cases challenging the legality of the Section 215 telephony metadata program of the Government’s intention, as of the morning of Tuesday, March 11, 2014, to comply with applicable FISC orders requiring the destruction of call-detail records at this time, absent a court order to the contrary.

Judge White was not impressed — he issued an order requiring the government to retain the data.

There are two things, even at first glance, that don’t make sense about all this.

First, there’s still one case that hasn’t been officially mentioned in any court discussion of retaining data I know of: Basaaly Moalin’s challenge to his dragnet identification, based off 2007 data that has probably already been destroyed but which almost certainly would reflect the many violations characteristic of the program at the time.

Then there’s the likelihood that one or both of the EFF cases was the case mentioned on February 17, 2009 — just over the 5 year age-off period at this point — regarding age-off requirements. If it was relevant then, why isn’t it now? Note, Reggie Walton is still presiding over the same decisions, so if that earlier case were an EFF one, Walton should know about it.

I would normally think this charade was just two sides lobbying for good press. Except that the phone dragnet data from just over 5 years ago — the stuff that would age off if the government followed FISC’s order — would show a great deal of violations, almost certainly constitutionally so.

So who is the entity in such a rush to destroy that data? DOJ? Or the FISC?

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FISA Court Finally Discovers a Limit to the Word “Relevant”

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A few weeks back I laughed that, in a probable attempt to score political points against those challenging the phone dragnet by asking to retain the phone dragnet longer than 5 years, DOJ had shown a rather unusual concern for defendant’s rights.

Judge Reggie Walton has just denied DOJ’s motion. In doing so he has found limits to the word “relevant” that otherwise seem unheard of at the FISC in recent memory.

For its part, the government makes no attempt to explain why it believes the records that are subject to destruction are relevant to the civil cases. The government merely notes that “‘[r]elevant’ in this context means relevant for purposes of discovery, … including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence.” Motion at 6. Similarly, the government asserts that “[b]ased on the issues raised by Plaintiffs,” the information must be retained, but it fails to identify what those issues are and how the records might shed light on them. Id. at 7. Finally, the motion asserts, without any explanation, that “[b]ased on the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only the BR metadata specifically relevant to the identified lawsuits.” Id. Of course, questions of relevance are ultimately matters for the courts entertaining the civil litigation to resolve. But the government now requests this Court to afford substantial weight to the purported interests of the civil litigants in retaining the BR metadata relative to the primary interests of the United States persons whose information the government seeks to retain. The government’s motion provides scant basis for doing so.

Shew. Given the way FISC has been defining the word “relevant” since 2004 to mean “virtually all,” I had thought the word had become utterly meaningless.

At least we know the word “relevant” has some limits at FISC, even if they’re unbelievably broad.

Mind you, I’m not sure whether FISC or the government is right in this case, as I do have concerns about the data from the troubled period during 2009 aging off.

But I will at least take some Friday afternoon amusement that the FISC just scolded the government about the word “relevant.”

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WTF Sprint Suit?

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As a number of outlets have reported, the government is suing Sprint for $63 million under the False Claims Act, claiming the telecom overbilled federal law enforcement agencies by charging for its CALEA modification costs in its wiretap charges.

On May 12, 2006, the Federal Communications Commission (FCC) resolved a dispute between law enforcement agencies and telecommunications carriers, and ruled that carriers were prohibited from using their intercept charges to recover the costs of modifying equipment, facilities or services that were incurred to comply with CALEA.

[snip]

Despite the FCC’s clear and unambiguous ruling, Sprint knowingly included in its intercept charges the costs of financing modifications to equipment, facilities, and services installed to comply with CALEA. Because Sprint’s invoices for intercept charges did not identify the particular expenses for which it sought reimbursement, federal law enforcement agencies were unable to detect that Sprint was requesting reimbursement of these unallowable costs.

By including the unallowable costs of financing CALEA modifications in their intercept charges, Sprint inflated its charges by approximately 58%. As a result of Sprint’s false claims, the United States paid over $21 million in unallowable costs from January 1, 2007 to July 31, 2010.

Now, maybe this is just what it appears. Maybe this really is just about Sprint charging for CALEA changes they weren’t permitted to. The LEAs lay out

But I can’t help but wonder whether something else is going on.

Consider, for example, that the CALEA settlement was signed on May 12, 2006, just 12 days before the phone dragnet started. As I’ve noted, the first two phone dragnet orders compensated providers for charges incurred (which is not provided for in the Section 215 statute). And the period during which Sprint allegedly overcharged the government — 2007 to 2010 — is solidly in the middle of the dragnet.

In any case, in the middle of the biggest debate on surveillance in some time, DOJ is calling more attention to it. And DOJ wants a jury trial for this.

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Is Twitter EFF’s Second NSL Client?

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In the past, I’ve tracked the efforts of a telecom — which WSJ convincingly argued was Credo — to challenge a 2011 National Security Letter. It has the support of EFF on that challenge. I also noted language in Credo’s Transparency Report (which was issued after DOJ permitted providers to give broad bands for NSLs, but before DOJ permitted them to give broad bands for other national security demands) saying it was prohibited from giving more information about NSLs and Section 215 orders.

It is important to note that it may not be possible for CREDO or any telecom carrier to release to the public a full transparency report, as the USA PATRIOT Act and other statutes give law enforcement the ability to prevent companies from disclosing whether or not they have received certain orders, such as National Security Letters (NSLs) and Section 215 orders seeking customer information. [my emphasis]

Today, EFF noted that it has filed what should be its response to the government’s appeal in that case.

Only, it makes it it representing not just the known telecom client, but also an Internet client.

The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals.  The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

Now, one obvious potential Internet client would be Google. It is known to have fought NSLs in Judge Susan Illston’s court and lost.

But I wonder whether it isn’t Twitter.

I say that, first of all, because of the cryptic language in Twitter’s own Updated Transparency Report, which was released after the DOJ settlement which should have permitted it to report NSLs. But instead of doing so, it pointed out that it can’t report its national security orders, if any, with enough particularity. It called out NSLs specifically. And it used a language of prohibition.

Last week, the U.S. Department of Justice and various communications providers reached an agreement allowing disclosure of national security requests in very large ranges. While this agreement is a step in the right direction, these ranges do not provide meaningful or sufficient transparency for the public, especially for entities that do not receive a significant number of – or any – national security requests.

As previously noted, we think it is essential for companies to be able to disclose numbers of national security requests of all kinds – including national security letters and different types of FISA court orders – separately from reporting on all other requests. For the disclosure of national security requests to be meaningful to our users, it must be within a range that provides sufficient precision to be meaningful. Allowing Twitter, or any other similarly situated company, to only disclose national security requests within an overly broad range seriously undermines the objective of transparency. In addition, we also want the freedom to disclose that we do not receive certain types of requests, if, in fact, we have not received any.

Unfortunately, we are currently prohibited from providing this level of transparency. We think the government’s restriction on our speech not only unfairly impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of government affairs. We believe there are far less restrictive ways to permit discussion in this area while also respecting national security concerns. Therefore, we have pressed the U.S. Department of Justice to allow greater transparency, and proposed future disclosures concerning national security requests that would be more meaningful to Twitter’s users. We are also considering legal options we may have to seek to defend our First Amendment rights. [my emphasis]

It was a defiant Transparency Report, and it discussed prohibitions in a way that no one else — except Credo — had done.

Moreover, it would make sense that EFF would be permitted to represent Twitter in such a matter, because it already had a role in Twitter’s challenge of the Administrative subpoena for various WikiLeaks’ associates Twitter data.

Finally, EFF notes that this Internet client is fighting just 2 NSLs; Google is fighting 19.

The very same day that the district court issued that order striking down the statute, a second EFF client filed a similar petition asking the same court to declare the NSL statute to be unconstitutional and to set aside the two NSLs that it received.

Notwithstanding the fact that it had already struck down the NSL statute on constitutional grounds in EFF’s first NSL case, but indicating that it would be up to the Ninth Circuit to evaluate whether that evaluation was correct, the district court denied EFF’s client’s petitionand ordered them to comply with the remaing NSL in the interim.

If Twitter is the client, it would present real First Amendment issues. It would suggest that, after Twitter took the rare step of not just challenging but giving notice in an Administrative subpoena, DOJ decided to use NSLs, which are basically Administrative subpoenas with additional gags, in response.

Update: in potentially related news, Verizon just updated its Transparency Report, claiming it can’t provide details on some bulk orders.

We note that while we now are able to provide more information about national security orders that directly relate to our customers, reporting on other matters, such as any orders we may have received related to the bulk collection of non-content information, remains prohibited.

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The Filings DOJ Is Withholding In Jewel/Shubert

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I’m re-reading all the declarations released last December in the Jewel case (the EFF-tied lawsuit challenging the dragnet) … because I’m like that.

But I also want to call attention to details in this court filing challenging James Clapper’s most recent declaration about what has been declassified. In addition to pointing out that far more has been declassified on the upstream collection and the ineffectiveness of the phone dragnet, but contrary to court orders, the government is still withholding some declarations.

Those declarations are:

  • April 9, 2007 notices indicating FISC Judge rejected early bulk orders
  • October 25, 2007 government challenge to motion to protect evidence, with ex parte NSA official declaration (submitted in Shubert)
  • April 3, 2009 supplement motion to dismiss
  • October 30, 2009 supplemental memorandum on points of authority
  • November 2012

Given that we have a much better understanding of the relative happenings in the dragnets, I wanted to lay these dates out.

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2008’s New and Improved EO 12333: Sharing SIGINT

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As part of my ongoing focus on Executive Order 12333, I’ve been reviewing how the Bush Administration changed the EO when, shortly after the passage of the FISA Amendments Act, on July 30, 2008, they rolled out a new version of the order, with little consultation with Congress. Here’s the original version Ronald Reagan issued in 1981, here’s the EO making the changes, here’s how the new and improved version from 2008 reads with the changes.

While the most significant changes in the EO were — and were billed to be — the elaboration of the increased role for the Director of National Intelligence (who was then revolving door Booz executive Mike McConnell), there are actually several changes that affected NSA.

Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.

The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,

In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.

In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.

Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.

In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.

And a more subtle change goes even further. Section 2.5 of the EO delegates authority to the AG to “approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes.” In both the original and the revised EO, that delegation must be done within the scope of FISA (or FISA as amended, in the revision). But in 1981, FISA surveillance had to be “conducted in accordance with that Act [FISA], as well as this Order,” meaning that the limits on US person collection and dissemination from the EO applied, on top of any limits imposed by FISA. The 2008 EO dropped the last clause, meaning that such surveillance only has to comply with FISA, and not with other limits in the EO.

That’s significant because there are at least three things built into known FISA minimization procedures — the retention of US person data to protect property as well as life and body, the indefinite retention of encrypted communications, and the broader retention of “technical data base information” — that does not appear to be permitted under the EO’s more general guidelines but, with this provision, would be permitted (and, absent Edward Snowden, would also be hidden from public view in minimization procedures no one would ever get to see).

Read more →

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NSA’s Newfound Concern about Defendants’ Rights under FISA

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As WSJ reported it was going to do, NSA has requested that the FISA Court permit it to retain call data beyond the 5 year age-off date because of all the lawsuits it faces.

[T]he Government requests that Section (3)E of the Court’s Primary Order be amended to authorize the preservation and/or storage of certain call detail records or “telephony metadata” (hereinafter “BR metadata”) beyond five years (60 months) after its initial collection under strict conditions and for the limited purpose of allowing the Government to comply with its preservation obligations, described below, arising as a result of the filing of several civil lawsuits challenging the legality of the National Security Agency (NSA) Section 215 bulk telephony metadata collection program.

It provides this introduction to a list of the suits in question.

The following matters, currently pending either before a United States District Court, or United States Court of Appeals, are among those in which a challenge to the lawfulness of the Section 215 program have been raised:

And lists:

  • ACLU v. Clapper
  • Klayman v. Obama
  • Smith v. Obama, an Idaho case
  • First Unitarian Church of LA, the EFF related case
  • Paul v. Obama
  • Perez v. Clapper, a Bivens suit out of West Texas I hadn’t known about before

It goes on to say,

The duty to preserve typically arises from the common-law duty to avoid spoilation of relevant evidence for use at trial;

[snip]

A party may be exposed to a range of sanctions not only for violating a preservation order,3 but also for failing to produce relevant evidence when ordered to do so because it destroyed information that it had a duty to preserve.

3 To date, no District Court or Court of Appeals has entered a specific preservation order in any of the civil lawsuits referenced in paragraph 4 but a party’s duty to preserve arises apart from any specific court order.

[snip]

When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.

[snip]

Based upon the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits.

[snip]

Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801(h) to abrogate the rights afforded to defendants in criminal proceedings.4 For example, in discussing section 1806, Congress stated,

[a]t the outset, the committee recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under Brady v. Maryland, and the Jencks Act. These legal principles inhere in any such proceeding and are wholly consistent with the procedures detailed here.

[snip]

Although the legislative history discussed above focuses on the use of evidence against a person in criminal proceedings, the Government respectfully submits that the preservation of evidence in civil proceedings is likewise consistent with FISA.

4 By extension, this should also apply to section 1861(g) which, with respect to retention is entirely consistent with section 1801(h).

Now, if you’re not already peeing your pants in laughter, consider the following.

First, as EFF’s Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader.

So, at least in her interpretation, it should already be retaining it.

Then, consider DOJ’s very serious citation of Congress’ intention that FISA not impair any defendant’s criminal rights. It basically says that that principle, laid out during debates about traditional FISA in 1978, should apply to other parts of FISA like the phone dragnet.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants’ rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Also, did you notice what pending case pertaining to the legality of the phone dragnet DOJ didn’t mention? Basaaly Moalin’s appeal of his conviction based off evidence collected pursuant to Section 215. What do you want to bet that NSA hasn’t retained the original phone records that busted him, which would have aged off NSA’s servers back in October 2012, well before DOJ told Moalin it had used Section 215 to nab him. That’s relevant because, according to recent reporting, NSA should not have been able to find Moalin’s call records given claims about limits on collection; if they did, they probably only did because AT&T was turning over other providers phone records. Moreover, we know that NSA was in violation of the dragnet minimization requirements in a slew of different ways at the time. Notably, that includes queries using selectors that had not been RAS-approved, as required, and dissemination using EO 12333’s weaker dissemination rules. Now that we know of these problems, a court might need that original data to determine whether the search that netted Moalin was proper (I presume NSA has the original query results and finished intelligence reports on it, but it’s not clear that would explain precisely how NSA obtained that data). Significantly, it was not until after 2009 that NSA even marked incoming data to show where it had been obtained.

So show us (or rather, Moalin’s lawyers) the data, NSA.

Ah well. If nothing else, this laughable motion should prove useful for defendants challenging their conviction because DOJ abrogated their rights!

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Jack Goldsmith’s Still Active Presidential Dragnet Authorization

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In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)

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DOJ: Our Delayed Notice Doesn’t Mean You Can Withdraw Your Plea

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DOJ has now given a third defendant, Agron Hasbajrami, notice his prosecution was “derived from” Section 702.

The government submits this letter to supplement the government’s original Foreign Intelligence Surveillance Act (“FISA”) notice, which was filed on September 13, 2011. The original FISA notice advised you that the government intended to offer into evidence, or otherwise use or disclose “information obtained or derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (‘FISA’), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.” (Dckt. # 9). Electronic surveillance under these provisions is commonly referred to as Title I collection, while physical search is commonly referred to as Title III collection.

We write to supplement the original notice by informing you that, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), the government intended to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a. This supplemental notification is based on a recent determination by the government that certain evidence or information obtained or derived from Title I and Title III FISA collection in this case was itself also derived from other collection pursuant to Title VII of FISA as to which you were aggrieved. [my emphasis]

Oops! “Was aggrieved.” That means he should have gotten notice.

There’s just one problem: Hasbajrami already took a plea deal, pleading guilty to material support for terrorism on April 12, 2012.

And DOJ says he can’t take it back.

The Supplemental Notification was filed based on a recent determination by the government that certain evidence or information obtained or derived from Title I and Title III collection in the petitioner’s criminal case was itself also derived from other collection pursuant to Title VII of FISA as to which the petitioner was aggrieved. Title VII of FISA, enacted pursuant to the FISA Amendments Act (“FAA”), permits, inter alia, the targeting of electronic communications of non-U.S. persons located outside the United States, subject to certain statutory requirements. See 50 U.S.C. § 1881a. Specifically, the Supplemental Notification stated that “the government intended to offer into evidence or otherwise use or disclose in proceedings in [the criminal case] information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §1881a.”

The Supplemental Notification does not afford the petitioner a basis to withdraw his plea or to otherwise attack his conviction or sentence because he expressly waived that right, as well as his right to any additional disclosures from the government, in his plea agreement. The plea agreement, which was accepted by the Court at sentencing, provided that, “The defendant agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 15 years or below. . . . The defendant waives any right to additional disclosure from the government in connection with the guilty plea.” [my emphasis]

Mind you, Hasbajrami has an active habeas challenge to his conviction, and DOJ has very generously suggested they wouldn’t mind if the Court gives him some more briefing time to address this delayed notice.

Still.

No wonder John Carlin umed and ahed so much today.

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Confirmed: DOJ Uses Section 702 to Get Title I FISA Warrants

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In addition to the apparent miscommunication between Mark Udall and Acting (and presumably soon to be confirmed) DOJ National Security Division Head John Carlin, there was an even more telling exchange in today’s hearing.

In it, Martin Heinrich asked whether DOJ had yet written down its radical new policy of giving notice to defendants caught using Section 702.

Heinrich: As you know in October 2013, after months and months of discussion and debate in which you and the NSD were involved, DOJ adopted a new policy by which Federal prosecutors would inform defendants when they intended to offer evidence informed, obtained, or derived from intelligence collected under Section 702 of FISA. And when you and I met in December you informed me that that policy had not yet been reduced to a formal written policy, and so, Mr. Carlin, I wanted to ask, is that process done yet and has that policy been finalized and if so has it been disseminated in written form?

Carlin: Thank you Senator, and thank you for having taken the time to meet prior to this uh, hearing, in terms of the question, it is my understanding that it was the practice of the, uh, or policy of the Department, to inform a defendant in a criminal case, to give notice, if there was 702 information that was going to be used against them prior to, uh, prior to this change in practice. The change in practice had to do with a particular set of circumstances when there was an instance where information obtained from one prong of the FISA statute, 702, was used and led to information that led to another prong of FISA, Title I FISA, being used, and that when the notice was given to the defendant that that notice was referring to one type of FISA but not both types of FISA. And that is the practice that we uh reviewed and changed, so that now defendants are receiving notice in those instances of both types of uh, FISA, the review of cases affected like that, uh, affected by that continues, but we have filed such notice now, I believe in three uh criminal matters, including the case of Mohamed Mohamud, the individual convicted by a jury of attempting to uh use an explosive device in a Christmas tree lighting ceremony. In reference to that case we’ve now filed, um, there’s a filing in that case we should provide to your staff where we lay out what our practice is and I will ensure that that filing is distributed to US Attorneys offices across the country so they know exactly what our position is in that issue.

Heinrich: That’s helpful. And so you’ll share that with the committee as well?

Carlin: Yes sir.

Heinrich: Great.

Now, Carlin might be forgiven for all the uming and ahing here. After all, the filing he appears to be referring to is sort of an extended effort to pretend that “derived from” doesn’t mean “derived from,” all in an effort to pretend DOJ hasn’t been deliberately hiding this (in Mohamud’s case) for over 3 years.

But kudos to Carlin for not using that verb — derived — in his answer, choosing instead to use “was used and led to information that led to.”

All that said, Carlin did admit what has been clear for some time: that DOJ has been hiding Section 702 collected information by getting Title I warrants they provide to defendants. Which is another way of saying all the reassurances people have given about the protections given to people collected incidentally in Section 702 fall flat, because what has actually been happening is the government uses that incidental collection to justify Title I warrants.

Um.

I’m glad that’s all cleared up.

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