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Judge Pauley’s Deliberate Blind Spot: Systematic Section 215 Abuses

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Sorry for my silence of late, particularly regarding William Pauley’s ruling finding the phone dragnet legal. The good news is my mom can now reach the light switch in her sewing room without risk of falling.

As noted, Judge Pauley ruled against the ACLU in their suit challenging the phone dragnet. A number of commentators have pointed to some bizarre errors or focus in Pauley’s ruling, including,

  • Pauley says the government could not find the “gossamer threads” of terrorist plotters leading up to 9/11. They did find them. They simply didn’t act appropriately with them.
  • He unquestioningly considers the 3 uses of Section 215 (with Zazi, Headley, and Ouazzani) proof that it is effective. He does not note that even Keith Alexander has admitted it was only critical in one case, one not even mentioned in the government’s filings in this case.
  • He ignores the role of the Executive in willingly declassifying many details this program, instead finding it dangerous to allow the ACLU to sue based on an unauthorized leak. The government has actually been very selective about what Snowden-leaked programs they’ve declassified, almost certainly to protect even more problematic programs from legal challenge.
  • He claims Congress has renewed Section 215 7 times (including 2001, it was renewed it 5 times).
  • He claims there is no doubt the Intelligence and Judiciary Committees knew about the rulings underlying the program in spite of the fact that some rulings were not provided until after Section 215 was renewed; he admits that the limits on circulation of notice in 2011 was “problematic” but asserts the Executive met its statutory requirements (he doesn’t deal with the evidence in the record that the Executive Branch lied in briefings about the conduct of the dragnet).

There are also Pauley’s claims about the amount of data included — he says the government collects all phone metadata; they say NSA collects far less data. This is a more complicated issue which I’ll return to, though maybe not until the New Year.

But I’m most interested in the evidence Pauley points to to support his claim that the FISC (and Congress) conduct adequate oversight over this program. He points to John Bates’ limits to the government’s intentional collection of US person data via upstream collection rather than Reggie Walton’s limits to Section 215 abuses.

For example, in 20011, FISC Judge Bates engaged in a protracted iterative process with the Government–over the Government’s application for reauthorization of another FISA collection program. That led to a complete review of that program’s collection and querying methods.

He then immediately turns to Claire Eagan’s opinion reiterating that the government had found and dealt with abuses of the phone dragnet program.

In other words, for some bizarre reason he introduces a series of rulings pertaining to Section 702 — and not to Section 215 — to support his argument that the government can regulate this Section 215 collection adequately.

It’s particularly bizarre given that we have far more documents showing the iterative process that took place in 2009 pertaining directly to the phone dragnet. Why even mention the Bates rulings on upstream collection when there are so many Reggie Walton ones pertaining directly to Section 215?

I suspect this is because Pauley relies so heavily on the adequacy of the minimization procedures imposed by the FISC, as when he cites Claire Eagan’s problematic opinion to claim that without adequate minimization procedures, FISC would not approve Section 215 phone dragnet orders.

Without those minimization procedures, FISC would not issue any section 215 orders for bulk telephony metadata collection.

(Note, Pauley doesn’t note that the government has not met the terms of the Section 215 itself with regards to minimization procedures, which among other things would require an analysis of the NSA using a statute written for the FBI.)

The only way Pauley can say the limits he points to in his analysis — that NSA can only analyze 3 hops deep, that FBI only gets summaries of the queries, that every query got approved for RAS — is if he ignores that for the first 3 years of the program, all of these claims were false.

He uses similar analysis to dismiss concerns about the power of metadata.

But [ACLU’s contention that the government could use metadata analysis to learn sensitive details about people] is at least three inflections from the Government’s bulk telephony metadata collection. First, without additional legal justification–subject to rigorous minimization procedures–the NSA cannot even query the telephony metadata database. Second, when it makes a query, it only learns the telephony metadata of the telephone numbers within three “hops” of the “seed.” Third, without resort to additional techniques, the Government does not know who any of the telephone numbers belong to.

These last assertions are all particularly flawed. Not only have these minimization procedures failed in the past, not only has the government been able to go four hops deep in the past (which could conceivably include all Americans in a query), not only is there abundant evidence — which I’ll lay out in a future post — that the government does know the identities of at least some of those whom it is chaining, but there are two ways the government accesses this data for which none of this is true: when “data integrity analysts” fiddle with the data to prepare it for querying, and when it is placed in the “corporate store” and analyzed further.

All the claims about minimization Pauley uses to deem this program legal have big big problems.

The NSA conducted a fraud on the FISC for 3 years (and still is, to the extent they claim the violations under the program arose from complexity rather than their insistence on adopting all the practices used under the illegal program for the FISC-authorized program). Yet Pauley points to the FISC to dismiss any Constitutional concerns with this program.

And to do that, he ignores the abundant evidence that all his claims have been — and may still be, in some cases — false.

Phone and Internet Associations Are Both Terror Group Membership and a Chance Encounter in a Dance Hall

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Screen shot 2013-11-25 at 12.59.34 PM

The sole discussion of First Amendment considerations in this undated training (it’s probably between early 2008 and 2011) is one page with a list of protected activities.

As I noted last week, from the start of the dragnet programs, neither the Court nor the government appear to have considered the implications dragnet analysis had for Freedom of Association.

Several of the training documents released last week — notably this August 29, 2008 NSA Memo — suggest the NSA reconsidered the associational implications of the dragnet in 2008. Nevertheless, in a document that appears to reflect an August 20, 2008 effort to protect associations, the NSA continued to use at least some associations as evidence of terrorist affiliation.

The rules on dragnet queries changed on August 20, 2008

As I noted some weeks ago, the government has withheld at least 3 FISC opinions pertaining to Section 215; one of the withheld opinions is dated August 20, 2008. This memo, written 9 days later, lays out the legal standard for contact-chaining for both the phone and Internet dragnet programs as described in two 2008 dockets.

Specifically, the memo elaborates on the legal standard applicable to the contact-chaining activities in which SID offices engage pursuant to Business Records Order 08-08 (as well as subsequent Orders for the production of telephony records)1 as well as to the contact chaining activities in which SID analysts engage pursuant to the Pen Register and Trap and Trace Order 08-110 (as well as subsequent Pen/Trap Orders ).

The documents must be the most recent, given the way the memo applies this standard to orders going forward. And it replaces an earlier memo, written just months after the start of the phone dragnet.

OGC memorandum dated October 13, 2006, same subject, is canceled. This memorandum updates the prior memorandum to reflect changes in the Foreign Intelligence Surveillance Court (FISC) authorizations specifically authorizing access to the data acquired under the Orders for analysis related to [redacted — probably describes terrorism subjects] The substantive guidance concerning the application of the “reasonable articulable suspicion” standard with respect to the authorizations remains unchanged.

All of which strongly suggests this memo served to incorporate whatever changes the August 2008 opinion made into NSA practice.

The change in the rules pertain to the treatment of association

The structure of the memo — along with the footnote’s explanation that the standards for Reasonable Articulable Suspicion  (cited above) have not changed — suggest that what did change pertains to Association.

After an introductory section, the memo has this structure:

A. Summary of the [RAS] Standard

B. Association with [redacted — probably terrorist targets]

C. First Amendment Considerations

D. Summary

In other words, the memo seems to assess the impact of an August 20, 2008 FISC opinion commenting on the degree to which First Amendment protected activity may serve as proof of a tie (an association) to a terrorist organization.

Regardless of what the FISC said, association is the same thing as membership

Before I lay out the logic dismissing any associational concerns presented by using phone contacts to assume a tie to terrorism, let me get to the punch line. After explaining that simply lobbying a member of Congress to “cut off funding for U.S. troops in Iraq” does not prove an association with terrorism (though some other NSA documents suggest it may have been regarded as such at one time), the memo explains that in some circumstances direct contact can do so.

But, as we have already made clear, we do not read the Order to preclude under all circumstances the conclusion that a number is associated with [redacted — probably terrorist groups] solely on the basis of its communications [redacted] and, more specifically, based on its contacts with numbers about which NSA has the appropriate level of suspicion. Our conclusion is supported by First Amendment law, as we discuss below.

In a footnote on that same page, the memo makes a breathtaking conflation of “member” and “associated with” a terrorist group.

We note also that the very object of the overall effort supported by these Orders is to determine whether or not particular individuals are members of or are associated with the terrorist organizations named in the Orders. Thus, under these Orders, simply by being a member of a named group one becomes subject to government scrutiny. [my emphasis]

That is, NSA sets out to argue that, regardless of whatever that FISC opinion states, association with a terrorist group (provided that they engage in direct contact) amounts to membership in it.

And here’s how that analysis ends up. Read more →

CIA Aims to Hide Its SEKRIT Files at Second Circuit Again

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Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.

The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.

On October 1, the Second Circuit heard the ACLU and NYT’s appeal of Colleen McMahon’s decision to dismiss their FOIA on documents relating to the Awlaki killing.

At the hearing, this exchange occurred.

JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?

MS. SWINGLE: I believe so, your Honor.

JUDGE NEWMAN: Is that a correct citation? Because I  couldn’t find it.

MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.

JUDGE NEWMAN: Do they have it there?

MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.

JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.

Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.

During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.

Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.

The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.

Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on  to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).

(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–

(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;

In which case, surprise surprise, this is about hiding CIA files.

But we already knew that.

And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.

One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.

JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.

MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.

JUDGE NEWMAN: That’s a secret.

MS. SWINGLE: It is.

Read more →

Question: What Do David Barron and Jay Bybee Have in Common?

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Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they’ve dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.

[snip]

Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.

[snip]

Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

NSA Caught Illegally Spying on Americans and Keith Alexander’s Answer Is a Group Hug

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Kevin Gosztola had a superb post yesterday on a letter NSA Deputy Director John Inglis and DIRNSA Keith Alexander sent to family members of NSA employees to make them feel better about the dragnet. It’s a two page letter attempting to convince the family members of our SIGINT spies that their mission is noble and their actions within the scope of the law.

I’m particularly interested in the timing of it. As Kevin notes, the letter cites a typically obsequious post from Ben Wittes on how the Administration should have responded to WaPo’s disclosure of an internal review (just as one example, Ben claims to have read the report closely but somehow misses that 9 to 20% of violations consist of analysts breaking rules they know).

Inglis and Alexander write,

There are some in the media who are taking the time to actually study the leaked material, and they have drawn conclusions that are very different from those who are in it for a quick headline. One such legal scholar wrote that we should have made our case more forcefully by responding,

Shameful as it is that these documents were leaked, they actually should give the public great confidence both in NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA.

We couldn’t agree more.

I wonder if NSA would like to send family members my way, given that I have taken even more time than Ben studying these revelations and find he’s frequently engaging in spin?

Hmm. Probably not.

But what’s most fascinating by this citation is the timing.

Ben wrote that post on August 18, in the midst of a slew of disclosures by WaPo and the Guardian.

But Inglis and Alexander wrote this letter on September 13 — last Friday — at the end of a month when all of the major US-based disclosures (save that NSA has deliberately made all of us more vulnerable to hackers) have come from the government. In the month leading up to this letter, we learned the NSA:

At the end of 2008, the NSA had authorized contact chaining off of 27,090 identifiers and analysts could go four hops deep into the data, which effectively would allow them to create a relationship map of the entire country. And they used it not just to find “terrorists,” but also people they could coerce to inform on targets.

A system the Stasi would envy!

And FISA Court judges had deemed some of the first and third practices illegal. One threatened criminal referral and the other even shut down at least part the program for a period.

Read more →

ACLU to Jim Comey: Welcome. Now Fix This.

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Jim Comey has officially been in charge of the FBI for less than two weeks.

Today, in honor of Constitution Day, the ACLU just released a report showing how the FBI’s expanded mandate since 9/11 has led to Constitutional abuses.

Most of the details of the report have been reported here in depth. But the Big Data section includes some details I haven’t covered. It explains:

FBI collects Suspicious Activities Reports that duplicate — but lower the standard for — an existing database

Another major problem is that eGuardian effectively competes with another federal government SAR. The Intelligence Reform and Terrorism Prevention Act of 2004 established the Information Sharing Environment (ISE) to serve as the conduit for terrorism-related information sharing between state and local law enforcement and the federal government.114 A March 2013 Government Accountability Office report found that though the two programs share information between them, eGuardian uses a lower evidentiary threshold for inclusion of SARs, which creates risks and privacy problems.

The Government Accountability Office found that “many fusion centers have decided not to automatically share all of their ISE-SARs with eGuardian” because eGuardian doesn’t meet ISE standards.115 One fusion center said it would never provide SARs to eGuardian because of the fusion center’s privacy policy.116 The Government Accountability Office also found that the two systems “have overlapping goals and offer duplicative services.”117

FBI will soon have the equivalent of 20 pieces of intelligence on every American — and they share this broadly

An FBI budget request for fiscal year 2008 said the FBI had amassed databases containing 1.5 billion records, and two members of Congress described documents predicting the FBI would have 6 billion records by 2012, which they said would represent “20 separate ‘records’ for each man, woman and child in the United States.”119

[snip]

According to a 2012 Systems of Records Notice covering all FBI data warehouses, the information in these systems can be shared broadly, even with foreign entities and private companies, and for a multitude of law enforcement and non-law enforcement purposes.133

There’s far more in the report, chronicling the slow creep of abusive FBI techniques since 9/11.

Sadly, given that this has all been treated as legal, I doubt that Comey will do anything about it, even with ACLU’s demonstration that the dragnet has led FBI to miss real crimes.

ACLU [and congress] Has Standing to Know What It Is Debating

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It is fundraising week(ish) here at Emptywheel. If you can, please support the site. 

In superb news, the FISA Court has agreed to release to ACLU whatever Section 215 opinions are not already covered by a 2011 FOIA suit ACLU filed in Southern District of New York.

 In an important decision, the Foreign Intelligence Surveillance Court ordered the government to review for release the court’s opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act. The ruling is on a motion filed by the American Civil Liberties Union, the ACLU of the Nation’s Capital, and Yale Law School’s Media Freedom and Access Information Clinic. Section 215, which authorizes the government to obtain “any tangible things” relevant to foreign-intelligence or terrorism investigations, is the claimed legal basis for the NSA’s mass phone records collection program.

“We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” said Alex Abdo, staff attorney with the ACLU National Security Project. “For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.”

The decision was based on a determination that, since ACLU is so central in these debates, it has standing to make such a request.

The Court ordinarily would not look beyond information presented by the parties to find that a claimant has Article III standing. In this case, however, the ACLU’s active participation in the legislative and public debates about the proper scope of Section 215 and the advisability of amending that provision is obvious from the public record and not reasonably in dispute. 11 Nor is it disputed that access to the Section 215 Opinions would assist the ACLU in that debate. The Court therefore concludes that the ACLU has satisfied that requirement. See, Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 579 (6th Cir. 2012). Accordingly, the Court finds that the withholding from the ACLU of the Section 215 Opinions constitutes a concrete and particularized injury in fact to the ACLU for purposes of Article III standing.

11 See e.g., Michelle Richardson, Legislative Counsel, ACLU Washington Legislative Office, Misdirection: The House Intelligence Committee’s Misleading Patriot Act Talking Points (June 20, 2013) (https://www.aclu.org/blog/national-security/misdirection-house-intelligencecommittees-misleading-patriot-act-talking); Testimony of Jameel Jaffer, Deputy Legal Director of the ACLU Foundation, and Laura W. Murphy, Director, Washington Legislative Office, ACLU, before the Senate Judiciary Committee Hearing on Strengthening Privacy Rights and National Security:

In truth, after Monday’s document dump, this decision may be more about precedent than expanded releases. Because it is limited to substantive decisions on Section 215 — and wouldn’t include every time a judge pulls more hair out upon being informed of yet another “violation” — there may not be many more decisions to release (unless, as I have wondered, there have been significant violations since 2009).

But there is another part of this decision that may be even more important, from the standpoint of precedent. It gives this brief nod to the amici, calling out the Members of Congress specifically (the other amici were journalism organizations, which, like the third party with ACLU, Media Freedom and Information Access Clinic, might have been denied standing), for its claim to standing.

Assuming that there are such Section 215 Opinions that are not at issue in the FOIA litigation, movants and amici have presented several substantial reasons why the public interest might be served by their publication.

[snip]

Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities.

Remember, the Congressional amici argued they can’t do their job without being able to discuss public FISC opinions.

Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. Read more →

The James Clapper Stall Declaration

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On Thursday July 25, the ACLU met the government for a hearing in their suit to stop the Section 215 dragnet (which I’ll call ACLU Injunction for this post). While there, the government handed the judge a filing for ACLU’s Section 215 FOIA, asking for more time (until September 15, or maybe longer) before respond in that case; they sent ACLU a redacted copy by letter the next day.

The filing includes a James Clapper declaration written way back on July 7 meant to apply to four or five cases asking for a two month delay on FOIA or related litgation; as far as is publicly known, however, the declaration had not yet been submitted in any of those cases.

The filing (and its redactions) are interesting for several reasons:

It suggests one ongoing case pertains to Section 215 and/or Section 702 surveillance in a way that is not publicly known.

As I said, this declaration pertains to four or five cases. Three of those are named:

  • EFF v. DOJ (12-1441): EFF’s FOIA suit to get the FISA Court opinion deeming Section 702 to have violated the Fourth Amendment (EFF FISC Opinion FOIA)
  • EFF v. DOJ (4:11-5221): EFF’s FOIA suit to get a limited number of documents pertaining to Section 215 (EFF 215 FOIA)
  • ACLU v. FBI (11-7562): ACLU’s FOIA suit to get a broader range of documents pertaining to Section 215 (ACLU 215 FOIA)

But after referencing those suits, the Clapper declaration redacts over a line describing at least one other case.

Screen shot 2013-07-28 at 10.16.40 AM

 

The letter accompanying this declaration includes a footnote explaining,

Some redactions in the declaration include information that, in isolation, may be unclassified but, in the context of the discussion in the declaration, could tend to reveal information that is still classified in other settings.

Given the other redactions — which largely refer to still unacknowledged or undisclosed aspects of the Section 215 and Section 702 surveillance, along with one probable reference to CIA — the name of these case(s) are probably one of those redactions that would be unclassified in other circumstances.

That suggests that it may be the relevance to this issue — the role of Section 215 or Section 702 — that makes the reference to the case classified.

My first guess about what case(s) might be included in that redaction is EPIC’s FOIA suit for materials pertaining to the investigation of supporters of WikiLeaks. As I have described, the government not only withheld everything under an “ongoing investigation” exemption, it also invoked “protected by statute.” But it didn’t say what statute prohibited it from releasing the materials, an unheard of FOIA practice. That suit is awaiting the judges decision on motions to dismiss.

Read more →

Will Keith Alexander FINALLY Tell the Full Truth about the Section 215 Dragnet in Today’s Secret Emergency Hearing?

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Since Edward Snowden made it clear the government has been collecting every American’s phone records in the name of terrorism (and Iran), the National Security establishment has made a great show of transparency.

Don’t worry it’s “just” metadata, they said. Only 300 queries, well, we really mean only 300 identifiers to query on, which works out to be more than 300 queries. Only those who talk to terrorists. Or talk to those who talk to terrorists. Or talk to those who talk to those who talk to those who talk to terrorists, they ultimately revealed.

But last Thursday, the government admitted, sort of, that they’re not being as transparent as they claim. In a letter submitted in an effort to stall for time in ACLU’s suit to stop the 215 collection, the government offered a 400+ word description of the program. But the description started by claiming the program is, “in may respects, still classified.”

This case concerns a highly sensitive and, in many respects, still classified intelligence-collection program that is designed to assist the U.S. Government in discovering whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States. Under this program, the Federal Bureau of Investigation (FBI) obtains authorization from the Foreign Intelligence Surveillance Court (“FISA Court”) to collect telephony metadata from certain telecommunications service providers. The National Security Agency (NSA), in turn, archives this information; queries the data, when strict standards are met, to detect communications between foreign terrorist organizations and their potential operatives located in the United States; and provides leads to the FBI or others in the Intelligence Community for counterterrorism purposes. [my emphasis]

So what do the “many respects” of this program that remain classified do? And do those “many respects” describe why the government needs to create an associational database including every American to help in just 13 plots over 7 years?

Which is why I find it interesting that, as soon as it became clear the Amash-Conyers amendment to the Defense Appropriations — which would defund the dragnet collection — would get a vote, NSA Director Keith Alexander decided he needed to talk to Congress in secret.

NSA head General Keith Alexander scheduled a last-minute, members-only briefing in response to the amendment, according to an invitation distributed to members of Congress this morning and forwarded to HuffPost. “In advance of anticipated action on amendments to the DoD Appropriations bill, Ranking Member C.A. Dutch Ruppersberger of the House Intelligence Committee invites your Member to attend a question and answer session with General Keith B. Alexander of the National Security Agency,” reads the invitation.

“The briefing will be held at the Top Secret/SCI level and will be strictly Members-Only,” the invitation read.

So it seems that Alexander has more to say about this program he has feigned transparency on for the last month and a half.

That said, Alexander has a serial history of misleading statements when he doesn’t have a public fact-checker. So while he may tell Congressmen and -women more details about how they’re really using this dragnet database and why making 13 investigations easier merits such overkill, it’s unlikely he’ll tell the compete truth. I’m not optimistic.

But he may finally reveal why the government chose this overkill method of surveillance.

While Alexander is conducting this top secret briefing, you can do your own lobbying[: call you member of Congress and tell them to support Amash-Conyers.

Nasser al-Awlaki: “My Grandson Was Killed by His Own Government”

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While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.

Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. Oral arguments on the suit begin tomorrow.

Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.

The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.

Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released. Today, an op-ed by Nasser al-Awlaki was published in the New York Times, helping to focus attention on tomorrow’s opening arguments. The video and op-ed are truly gut-wrenching.

From the op-ed:

I LEARNED that my 16-year-old grandson, Abdulrahman — a United States citizen — had been killed by an American drone strike from news reports the morning after he died.

The missile killed him, his teenage cousin and at least five other civilians on Oct. 14, 2011, while the boys were eating dinner at an open-air restaurant in southern Yemen.

The grandfather describes his anguish as he seeks answers to the question of why his grandson was killed:

Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.

Nasser al-Awlaki describes the huge impact an education in the United States made on his life and how he put that education to use when he returned to Yemen. More importantly, he puts the actions of the United States in killing his son and grandson significantly at odds with the values of the United States when he was a student here:

A country that believes it does not even need to answer for killing its own is not the America I once knew. From 1966 to 1977, I fulfilled a childhood dream and studied in the United States as a Fulbright scholar, earning my doctorate and then working as a researcher and assistant professor at universities in New Mexico, Nebraska and Minnesota.

/snip/

After returning to Yemen, I used my American education and skills to help my country, serving as Yemen’s minister of agriculture and fisheries and establishing one of the country’s leading institutions of higher learning, Ibb University. Abdulrahman used to tell me he wanted to follow in my footsteps and go back to America to study. I can’t bear to think of those conversations now.

The op-ed closes with a direct and haunting question:

The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?

Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.

What has our country become?