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Yes, in Gartenlaub, FBI Was Hunting for Child Porn in the Name of Foreign Intelligence Information

Over at Motherboard, I’ve got a piece on the Keith Gartenlaub hearing in the Ninth Circuit on December 4. Gartenlaub was appealing his conviction for possession of child porn, in part, based on the argument that the government shouldn’t have been able to look for child porn under the guise of searching for foreign intelligence information.

As I note, the public hearing seems to have gone reasonably well for Gartenlaub, with a close focus on how the US v Comprehensive Drug Testing precedent in the 9th Circuit, which requires searches of digital media to be appropriate to the purpose of the search, might limit searches for Foreign Intelligence Information.

Anthony Lewis, arguing for the government, suggested that FISA was different from the Rule 41 context; in FISA, he argued, specificity would be handled by post collection minimization procedures.

Anthony Lewis, arguing for the government, responded to Gartenlaub’s argument with vague promises that the minimization procedures—rules that FISA imposes on data obtained under the statute—would take care of any Fourth Amendment concerns. “The minimization procedures themselves really supply the answer in the FISA context,” Lewis said. Accessing data found during a search “simply operates differently in the FISA context, in which there is a robust set of procedures that exist on the back end of the search through acquisition, retention, and dissemination that is simply unlike what happens in a Rule 41 context.”

Lewis argued (and this is not in the post) that because FISA permits the sharing of criminal information, minimization procedures would always using evidence of a crime found in a search.

If it is evidence of a crime, then the minimization procedures — the statute does not call for it to be minimized. There are other procedures in place, some of which I can’t discuss in this open proceeding, but there are procedures in place that limit the use of that. Some of them are in the statute itself that Attorney General approval is required in order to use information obtained or derived from FISA.

The judges didn’t seem convinced. Each judge on the panel voiced a theory by which they could rule for Gartenlaub (which is different from giving him any kind of relief).

Judge Ronald Gould worried that if the government found evidence that wasn’t foreign intelligence but revealed something urgent—he used the example of a serial killer’s next targets throughout the hearing—it would need a way to use that information. Gartenlaub’s attorney John Cline and amicus lawyer Ashley Gorski, arguing for the ACLU, both noted an exigent circumstance exception could justify the use of the information on the hypothetical serial killer.

Judge Lawrence Piersol, a senior district court judge from Idaho, seemed to imagine district court judges providing individualized review on whether the information was reasonably obtained in a FISA-authorized search, possibly with the involvement of the court’s own cleared experts.

Judge Kim Wardlaw, who sat on the en banc panel for the Ninth Circuit precedent in question, asked why, when the government saw “a whole database [that] obviously suggests child porn” it couldn’t “go get another warrant?” So she seemed to favor a system where the government would have to get a criminal warrant to obtain child porn. That would present very interesting questions in this case, however, since the government obtained a criminal warrant based on probable cause that Gartenlaub was sharing information on Boeing intellectual property with China before it executed the FISA-authorized search that discovered the child porn.

But (also not in the post) Piersol added another example — one that has direct relevance for the most prominent investigation in the country implicating FISA, the Mueller investigation, which indicted FISA target Paul Manafort for what amounts to money laundering.

What about instead if you’re going through and looking for foreign intelligence information and you find a tremendous number of financial transactions which looks like it could well be money laundering. What do you do with that? Nothing? I mean, you just go ahead and prosecute it? You don’t have to worry about the fact that you weren’t looking for that?

Sure, Manafort’s not in the Ninth, but the judges sure seem inclined to limit the government’s ability to use a FISA order to troll through digital devices to find evidence of a crime that they can then use — as they did with Gartenlaub and are trying to do with Manafort — to coerce cooperation from the defendant. Depending on how they framed such a limit, it might seriously limit how the government enacted other FISA authorities in the circuit (which of course includes Silicon Valley — though any secondary searches would take place in Maryland or some other NSA facility); of very particular import, it would affect how the government implements its 2014 exception, whereby the NSA collects location obscured data (including entirely domestic communications) but then purges all but that which can be retained, including for criminal purposes, after the fact.

Which is why it’s so troubling that — as has happened in the last case where a defendant had a good argument to look at his FISA materials — the panel asked Lewis to stick around for an ex parte session.

Things were going swimmingly, that is, up until Wardlaw’s last comments to the government’s lawyer, Lewis. As he finished, she said she had no further questions, but added, “We’re going to ask you to stay after the hearing, to be available for us.” Lewis responded, “Understood, your honor,” as if he (and the people whose bags were sitting behind his counsel’s table but who were not themselves present) had advance warning of this. “Understood,” Lewis repeated again.

That was the first Gartenlaub’s team learned of the secret meeting the panel of judges had planned.

So after having presented a lackluster argument, Lewis was going to get a chance, it appears, to argue his case without Gartenlaub’s lawyers present, to be able to argue that not even Ninth Circuit precedent can limit the government’s authority to search with no limits in the name of national security.

There’s apparently precedent for this. Cline, who worked on the appeal of a defendant who almostgot FISA review, Adel Daoud, said the appeals court judges booted him and the other defense lawyers out of the courtroom for a similar ex parte hearing in that case too.

“The Seventh Circuit cleared the courtroom after the public argument and then allowed only government attorneys back in for the classified, ex parte session,” he said.

The session would not only give Lewis a chance to make further argument that the law envisions finding criminal evidence and using it to flip targets, but also to explain why, if the panel ruled in the direction it appeared they might, it would cause problems with other NSA collection.

Here’s the thing though — and the reason why an ex parte proceeding is so problematic here.

If given the chance, Gartenlaub would be able to argue in fairly compelling manner that the government set out to find things like child porn. That’s because one of the first steps of a forensics search — according to Gartenlaub’s forensics expert, Jeff Fischbach, who attended the hearing — is to set what you’re looking for. There’s a button to exclude all images and videos; by turning it off you vastly accelerate the search. And in Gartenlaub’s case, the government claimed to be looking for very specific kinds of foreign intelligence information: Boeing intellectual property, or any materials suggesting that Gartenlaub was dealing in same. The IP would have been CAD drawings stolen in digital form, not images. So to search what the government claimed it wanted to search for, there would have been no reason to search through any videos or photos. Which would have excluded finding the decade old child porn lying unopened on the hard drive.

As Wardlaw (who had been on the CDT panel) laid out,

The main problem we had was that in CDT, the government was authorized to look at the files pertaining to certain individuals — I believe Barry Bonds — and instead, they went further, and looked at the drug testing files for other baseball players. So that search was not authorized. They were not the subjects of the warrant and the warrant was circumscribed that way. Here, the warrant is any foreign intelligence data, it’s not narrower than that.

We don’t actually know (and it’s likely Wardlaw doesn’t either, at this point). But the government claimed to be searching for very specific things, tied to very specific claims of stolen IP from Boeing. Yet they necessarily designed their search to find far more than that. Which is how they found no foreign intelligence, but instead unopened child porn.

As Recently as 2012, FBI Didn’t Think Your Phone Number Was Your Identity

Last week, Charlie Savage liberated additional disclosures on three IG reports he liberated last year: the 2007 NSL report, the 2009 Stellar Wind report, and a 2012 DOJ IG Section 702 report. With the NSL report, DOJ disclosed numbers that I believe were otherwise public or intuitable. With the Stellar Wind report, DOJ disclosed additional information on how the Department was dodging its obligation to notify defendants of the surveillance behind their cases; I hope to return to this issue.

By far the most important new disclosure, however, pertains to the FBI’s reporting on reports on US persons identified under Section 702 (see pages 17-18, highlighted by Savage here). Introducing the Executive Summary description of whether FBI was fulfilling reporting requirements, the report explained that the IG had adopted a fairly strict understanding of what constituted a US person dissemination.

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Although the key passage is redacted (and the report body on this topic is almost entirely redacted), it’s clear that the IG considered reports that identified a US person via something other than his or her name without sharing the content of communications constituted a report “with respect to” 702 acquisitions.

The FBI had been arguing about these definitions internally  and with DOJ’s IG since at least 2006, when it failed to comply with the legally mandated requirement for new minimization procedures to go with Section 215.  One way to understand an early version of the debate is whether, by retaining call records that don’t include a name but do include phone numbers that clearly belong to a specific person, the FBI was retaining US person identifying information. For obvious reasons — because if their minimization procedures treated a phone number as US person identifying information, then it would mean it couldn’t retain 5 years of phone records — FBI didn’t want to treat a person’s unique identifiers as person identifying information. The minimization procedures adopted in 2013 must mirror this problem given that FBI and NSA kept those records for another two years.

It appears the IG found the FBI’s reporting lacking in several ways: it did not include Section 702 related reports that identify a US person if that person (which I assume to mean that person’s identity) was identified via other means, and argued FBI should also count reports if the US person information in it was publicly available. In addition, the IG considered a metadata reference to also constitute a US person reference.

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This suggests the FBI was, until 2012, at least, not including the sharing of an email or even a report that identified the person tied to an email if it found that email, but not that person’s identity, via Section 702 in its reports to Congress. Imagine, for example, if FBI didn’t consider my emptywheel  email personally identifying of me, emptywheel, until such time as it publicly tied that email address to me. It would be bullshit, but we know that seems to be the kind of game FBI was and probably still is playing.

I’m particularly interested in this because of a speech Dianne Feinstein made in December 2012 — presumably after FBI had made whatever response they might make to this IG report — that named a number of people as if they had been IDed using Section 702. But when several of them demanded notice of Section 702 surveillance, none of them got it, and Feinstein and the Senate’s lawyer insisted they could not make anything of her insinuation that Section 702 had discovered them.

In other words, the two standards at issue here — the minimization procedures standard and the notice one — may be implicated in DOJ’s opaque notice guidelines. We don’t know whether it is or not, of course, but if it is, it would suggest that DOJ is limiting 702 notices based on what kinds of identifiers 702 produces.

1/13: Tweaked this post for clarity. In addition, note these letters from the Brennan Center which relate to this issue.

 

Richard Posner Wants You To Learn to Love Secrecy

As you’ve likely already heard, the 7th Circuit ruled aggressively against Adel Daoud, overturning Judge Sharon Johnson Coleman’s ruling that his lawyers could review his FISA warrant. This was utterly predictable, but unfortunate nevertheless.

Steve Vladeck had a really good post on both Judge Ricard Posner’s overreach and Judge Ilana Rovner’s description of the problem FISA presents for challenging the truthfulness of FISA warrant materials.

Here’s how he describes Posner’s obnoxious assumption of the District Court job to actually determine whether defense review is necessary.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

[snip]

But far more troubling than these (gratuitous) rhetorical flourishes is the last part of Judge Posner’s opinion, which doesn’t just conclude that disclosure to Daoud’s defense counsel in this case is unnecessary under § 1806(f)—the step the Court of Appeals criticized Judge Coleman for skipping—but then goes on to resolve Daoud’s Franks motion on the merits. Thus, the majority concluded that “our study of the materials convinces us that the investigation did not violate FISA,” even though the district court hadn’t even gotten that far.

In other words, in a case in which the whole question is how judges should decide whether they need adversarial participation in order to properly resolve a FISA-based Franks motion, Judge Posner’s answer is, in effect, “don’t worry about it; we judges can handle this without any help.” With all due respect to one of the brightest and most gifted appellate judges in the country, how does he (or his colleagues) know that? Indeed, I thought one of the most significant revelations from the FISA-related disclosures of the past year is that, in fact, judges won’t always get these issues right without the benefit of adversarial presentation and argument.

What’s especially odd about Posner’s opinion, however, is his own understanding of the process he himself used to determine this warrant was legal.

Remember that at the original review of this case, Posner and his colleagues had an unannounced secret hearing to review the warrant, attended by a goodly chunk of the US Attorney’s office. After that, the Court issued an order requiring even more information from the government.

Asking for additional information is legal. Under FISA a reviewing (District) Judge can consult “such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized.” But the fact that the Circuit had to go back for even more information, after having seen all the materials Coleman reviewed, suggests the question was not as easy as Posner suggests.

And Posner wants us to believe his assumption of the role of the District Judge is a benefit to Daoud. He does so, first, in his bizarre rant about secrecy, when he emphasizes the times when secrecy benefit defendants. Then he goes further when dismissing Daoud’s lawyers objection to the secret hearing.

Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.

Only it wasn’t. It was an opportunity for the government to get a second bite at the ex parte apple, which by itself apparently wasn’t even sufficient to address questions about the application.

As Vladeck laid out, Rovner wrote a concurrence in which she acknowledged the failure of FISA to provide defendants with the ability to challenge the case against them.

But that’s not the direction our judiciary is going. On the contrary, it is embracing more and more secret procedures, all in an effort to hide what the government is really doing in its countereterrorism efforts.

Did the Government Invent Terrorist Threats Out of Adel Daoud’s Term Paper?

I’m just now getting around to listening to the Mulligan hearing in Adel Daoud’s hearing at the 7th Circuit on Monday which the panel held because the hearing held the previous Wednesday had not been taped.

The hearing (as opposed to Judge Richard Posner’s long digression about why they were having the Mulligan) started with Judge Ilana Rovner focusing on whether a defendant caught by FISA could ever take a Franks challenge to a FISA warrant — basically, a claim that the government relied on false information in an affidavit supporting a warrant. Posner, too, seemed focused on this, asking Prosecutor William Ridgway whether a case (this case?) could be sustained even in the face of a Franks challenge. (Ridgway said it could, but of course he would say that, because the Circuit can only sustain a review here if it would be significant enough to exonerate Daoud.)

And all that took place against the background of Posner claiming, at least, that the ex parte hearing last week was held to benefit his client, which suggests (as does the request for more information from the government) that the Circuit may be more skeptical of the warrant than Posner let on last week (or perhaps Posner got more skeptical after the hearing).

Daoud’s attorney, Thomas Durkin, tried to bring it back to the larger issues raising questions in this case, including the fact that Dianne Feinstein had suggested Daoud had been caught using Section 702 of FISA.

 

But ultimately, Posner showed most interest when Durkin talked about Daoud’s mosque school term paper on Osama bin Laden.

Durkin: We do know and we did tell the judge this that this 18 year old kid had to do a term paper for — he went to the mosque school, and he had to do a term paper. He decided to do a term paper on Osama bin Laden. We know he had contacts, therefore, with Inspire magazine and reasons why the NSA may have picked him up. That could be just deliberate First Amendment Activity. Nothing more, nothing less. We don’t know that. We don’t know whether there’s something in that affidavit that says — we’ve tried to rule out all kinds of First Amendment activity and we can’t find anybody. We should be permitted to see that.

Posner: Are you trying to say the government investigated him because of school paper he wrote?

Durkin: I don’t know. It could be.

Posner: No, but that’s your suspicion, right?

Durkin: That is my suspicion.

As I explained before, the investigation into Daoud started on May 10, 2012 in response to an unsolicited referral that claimed Daoud had said he’d use the instructions in Inspire to launch an attack. But neither that claim nor a subsequent claim based on an undercover officer shows the language Daoud used. The one time the FBI quoted Daoud in its summary, the FBI seemed to overstate the tie between Inspire and Daoud’s plans to hurt the US.

Thus, the evidence may well support the claim that the FBI — and whoever referred Daoud in the first place — overstated what Daoud had actually said about Inspire. Which, if that’s what they used to get a FISA warrant (and it appears likely it is), ought to be a good basis to claim they lied to get that FISA warrant.

That may not be enough to sustain Sharon Coleman’s decision Daoud should get a review of the warrant (though I suppose it’s possible the 7th could just decide to throw out the warrant). Plus, even then you might have to prove that everything that came after — including the alleged threats to a FBI agent — was entrapment.

But it seems like the 7th Circuit may be fairly critical of what they saw in that FISA warrant.

Richard Posner Prepares to Overrule the Intent of Congress, and Other FISA in Court Stories

While the focus on NSA related issues will be on Washington DC today, with activist events, a debate at Brookings, and a Senate Intelligence Committee hearing, yesterday it was in several courtrooms.

In Chicago DC, Richard Posner reportedly seemed intent on finding a way to overturn Sharon Johnson Coleman’s order that Adel Daoud’s lawyers should be able to review the FISA materials leading to the investigation into him. It seems Posner is not all that interested in Congress’ intent that, in some cases, defendants would be able to review FISA warrants.

While she also reportedly seemed inclined to overturn Coleman’s decision, Ilana Diamond Rovner at least recognized the clear intend of Congress to permit reviews in some circumstances.

Another of the appeals court panelists, Judge Ilana Diamond Rovner, added that Coleman appeared to have “discarded” applicable FISA law and come up with her own justification for opening the records.

Rovner noted in a question for Ridgway that when Congress enacted the FISA law in the 1970s, it could have clearly indicated defense attorneys should never get access to the records. But it didn’t do that, she said.

“Can you give me any scenario where disclosure (to the defense) would be necessary?” Rovner asked.

“It would be a rare circumstance,” Ridgway, the assistant U.S. attorney, responded.

As I noted, the Defense made a very good argument that Congress intended review in such cases as this one.

Perhaps most stunning, however, is the way everyone but a big team of government prosecutors got booted from the court room.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance — including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

I suspect Posner used the period to conduct his own review of the FISA materials, substituting his judgment for Coleman’s, so as to uphold DOJ’s flawless record of never having their FISA worked checked.

But don’t worry: NSA  defenders will point to this and claim has been thoroughly vetted.

Meanwhile, in Oregon, where Mohamed Osman Mohamud is challenging what increasingly looks like his discovery off a back door search, the government appears to have argued that there is a foreign intelligence exception to the Fourth Amendment.

Assistant U.S. Attorney Ethan Knight countered that the government has court-approved procedures in place that were followed with respect to Mohamud’s case. Warrants are not required under an exception for foreign intelligence, he argued.

“The reality is when you peel back the layers of hyperbole, what would be unprecedented is if this court were to grant the defendant’s motion,” Knight said.

He also pushed back against a wider examination of the program, saying that it was “not the time or place or even arguably the branch of government” for the broader debate.

Granted, this is not much more extreme than the argument the government made in its filings (as summarized by ACLU’s Jameel Jaffer), that Americans may have no privacy interest in international communications.

In  support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

The legal record on this is specific. While FISC found there was a warrant exception for “foreign” communications in Yahoo’s challenge of the Protect America Act, the FISA Court of Review’s decision was more narrow, finding only that there was a special need for the information before it, and also finding there were adequate protections for Americans (protections the government has been abrogating since the start of these warrantless programs). So while I will have to check the record, it appears that the line attorneys are going beyond what the appellate record (such as the FISCR decision can be called an appellate record) holds.

Adel Daoud Challenges the Government’s “Treatise” against FISA Review

On Saturday, I pointed to a newly unsealed exhibit in the Adel Daoud case suggesting that the case arose out of an unsolicited referral from a redacted entity based in part on a claim Daoud made comments in an extremist forum about using Inspire to conduct an attack.

That detail, however, is just background to the more pressing question of whether the 7th Circuit will uphold Judge Sharon Coleman’s order granting Daoud’s lawyers review of the FISA materials against him. As Daoud is the only defendant ever granted such an opportunity, the case presents the possibility of a change in the way FISA has been used against defendants for 36 years.

On Friday, Daoud’s lawyers submitted their response to the government’s argument that Coleman used the wrong standard when she deemed defense review of the FISA materials to be “necessary.”

The response is significant for the important argument it makes about the balance of civil rights and security Congress intended when it passed FISA. (Daoud’s team added powerhouse lawyer John Cline — who readers of this site may remember as Scooter Libby’s graymail lawyer — for this appeal and the brief seems to reflects Cline’s long engagement at the forefront of how classified evidence affects defendants).

Daoud’s lawyers point to this passage of the government brief.

In light of these procedures, “[d]isclosure of FISA materials is the exception and ex parte, in camera determination is the rule.” El-Mezain, 664 F.3d at 567 (citing Abu-Jihaad, 630 F.3d at 129); Duggan, 743 F.2d at 78  (same); United States v. Rosen, 447 F. Supp. 2d 538, 546 (E.D. Va. 2006); see also Belfield, 692 F.2d at 147 (“The language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary.”); United States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991). As this Court observed, a case in which “disclosure is necessary” is “one-in-a-million.” In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 203 (7th Cir. 2003) (affirming district court’s decision not to disclose FISA applications and orders based on the court’s own review of the record); see also Kris & Wilson, National Security Investigations § 29:3 n.1 (2d ed. 2012) (“Necessary means ‘essential’ or ‘required,’ and therefore the plain language of that provision makes clear that a court may not disclose . . . unless it cannot determine whether the surveillance was unlawful without the assistance of defense counsel and an adversary hearing.”).[my emphasis]

It’s a fairly boilerplate version of the paragraph the government uses in all challenges to FISA (though it includes a circuit-specific case they appear to misread and mischaracterize, not least because the District Judge said FISA review was moot in what was a grand jury contempt challenge).

But, as the defense notes, the paragraph relies for its definition of “necessary” on the book National Security Investigations, by former Assistant Attorney General for National Security David Kris and Federal Prosecutor Douglas Wilson, not on precedent. And as Kris and Wilson apparently admit, their claims about the term don’t match with the legislative history says. (Significantly, the government cites the legislative history elsewhere in their appeal, but not on this point.)

The government relies for its interpretation of “necessary” on a treatise. G.Br.19 (citing 2 David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions § 31:3, at 263 (2d ed. 2012)) [“Kris & Wilson”]. (The government mis-cites the relevant provision as § 29:3.) But Kris and Wilson rely on the purported “plain meaning” of “necessary,” without citing authority for that meaning, and they concede (in an understatement, as we demonstrate below) that what they consider the “plain meaning” of the term “is, however, somewhat at odds with the explanation in the legislative history.”

From there, the defense proceeds to explain what the legislative history is. Here’s what they conclude (based on the Senate reports).

First, the Senate Judiciary and Intelligence Committees plainly did not anticipate what followed over the next thirty-six years—that no court would ever find the “necessary” standard satisfied. Nothing in the Committees’ discussion suggests that they intended that standard to erect an insuperable barrier to disclosure. To the contrary, in choosing a balanced approach, the Committees specifically eschewed “an entirely in camera proceeding”—only to have the courts overturn that Congressional intent through an overly strict interpretation of “necessary.”

Second, the Committees, through their citation to Butenko, placed broad discretion in district judges in determining when disclosure is “necessary to make an accurate determination of the legality of the surveillance.” They intended that discretion to be exercised “after reviewing the underlying documentation and determining its volume, scope and complexity”—precisely as the district court did here.

Third, the Committees—again through their reliance on Butenko—suggest that the “necessary” standard is met when the district court determines that “adversary presentation would substantially promote a more accurate decision”—a far lower standard than the “essential” or “indispensable” standard the government advocates.

Fourth, the Committees noted the district court’s “broad discretionary power to excise certain sensitive portions” from the FISA materials before disclosure. This recognition of the district court’s inherent power to take necessary protective measures now finds a statutory basis in CIPA (discussed below). That power substantially ameliorates the government’s professed national security concerns.

Finally, the Senate Judiciary and Intelligence Committees contemplated—and did not shy away from—the outcome the government suggests is intolerable (G.Br.29-30): that the district court would order disclosure, the government would refuse to comply, and the court would suppress the surveillance or dismiss the prosecution. Just as Congress did in CIPA, 18 U.S.C. App. 3 § 6(e), the Committees left the choice with the government: either comply with the disclosure order or refuse and suffer appropriate sanctions.

I look forward to the government’s rebuttal of the legislative record. But this, noted defense expert on how classified information is supposed to affect criminal defense John Cline argues, is how Congress intended FISA to work. Sometimes the defense is supposed to be able to see and challenge the underlying FISA application.

Perhaps appropriately, given that Daoud is the first defendant ever to be granted review, this has become more than a review of whether the FISA warrant against him was proper. It has become a long-overdue debate about how FISA was supposed to balance defendants’ constitutional rights with concerns about national security.

The Suppressed Inspire-Ation for the Adel Daoud Investigation

According to an FBI 302 recently unsealed in the Adel Daoud case (see this post for background on Daoud), an FBI undercover counterterrorism team first targeted the 18-year old on May 10, 2012 in response to “unsolicited information” from an unknown entity, most of which remains redacted in the 302.

One piece of information legible in the 302, however, reveals that,

Adel David, believed to be an 18 year old male of Egyptian and Palestinian descent living in the greater Chicago area, has stated on web forum [redacted] that he has read an article on bomb making in Inspire Magazine and would make the bomb if he could find the required materials.

Compare that with the details in the September 15, 2012 Complaint used to arrest Daoud.

That narrative starts on October 9, 2011 (9 days after the CIA killed Awlaki in a drone strike), when Daoud sent himself “anwar al awlaki articles.” It also includes a number of subsequent emails with jihadist and anti-Israeli propaganda.  As email content, all this could have been obtained in a FISA physical search warrant on stored communication.

On February 6, 2012, according to the narrative, Daoud received an email regarding his registration to a jihad-related forum.

Then there’s this, dated the day before Chicago’s FBI office opened a full investigation into Daoud based in the referral, in part, based on Daoud’s forum claim to have Inspire in his possession.

On or about May 9, 2012, Daoud, using Daoud Account 1, sent himself (i.e., to Daoud Account 1) a link for Inspire magazines, issues on through nine.

Did Daoud download Inspire and immediately talk about it in that forum, that very same day, leading to a referral to the FBI, leading immediately to a full investigation?

We don’t know, because unless I’m mistaken, Daoud’s reference to Inspire in the jihadist forum that figures centrally in the unsolicited information sent to Chicago’s FBI office never appears in the complaint. It remains completely unmentioned, as if FBI has some reason to suppress it.

Mind you, a few days after May 14, 2012, Daoud did recommend one of the undercover officers, who presented himself to Daoud as a 17 year old Aussie with an interest in jihad, read Inspire. 

During their communications, Daoud recommended that OCE2 read Inspire magazine and sent OCE2 a website link to the publication, which OCE2 downloaded. Daoud characterized the magazine as “amazing” and remarked that he may use instructions from the magazine to carry out an attack.

The FBI did not quote Daoud purportedly stating he would use the magazine to carry out an attack.

And on May 31 — the FBI claimed — Daoud talked about using Inspire to conduct an attack. Here’s what he actually wrote, though:

The point is in this magazine they encourage Muslims in the West especially in the USA to attack IN America. By all means this is something i would consider. But in know that if i started attacking in American i would probably not be able to go to Yemen or anywhere else for Jihad in the Cause of Allah.

Is there a way i could do both, or what’s your opinion on that? i personally think it’s easier and more rewarding to go to Yemen but at the same time i hate the oppression of the USA and i would love to do something that would hurt it from the inside.

That is, a good 21 days after the FBI opened a full investigation of Daoud, he was still saying he’d prefer to go to Yemen. And the FBI’s claim he here said he’d use Inspire to launch an attack seems overstated based on the quoted language.

So the government made 3 claims Daoud said he’d use Inspire to launch an attack:

  • Sometime on or before May 10 (and possibly on May 9 or 10); the referring entity found this comment, and we don’t get to see that language
  • Sometime in the days after May 14, after FBI launched a full investigation; the FBI doesn’t show language saying he’d launch an attack
  • On May 31; at least in the quotation given, the FBI overstates the tie between Inspire and an attack

Now perhaps Daoud really did say it, in that forum comment that led immediately to a full investigation and potentially a FISA warrant. But the FBI isn’t showing it, either because the evidence doesn’t do what they say and/or because they need to hide that Daoud was under surveillance by an unknown agency before FBI got the investigation.

All this seems to suggest either that pre-May 10 forum comment launched the investigation and/or Daoud’s download of Inspire did. And that that’s precisely what the FBI is trying to hide with its refusal to tell how it got a FISA warrant against Adel Daoud.

This has further significance given the possibility it reflects either NSA tracking Inspire downloads (which I suspect it does as upstream collection), or a surveillance of forums under FISA. I’ll return to that in a future post.

The NSA’s Retroactive Discovery of Tamerlan Tsarnaev

In the days after the Boston Marathon attack last year, NSA made some noise about expanding its domestic surveillance so as to prevent a similar attack.

But in recent days, we’ve gotten a lot of hints that NSA may have just missed Tamerlan Tsarnaev.

Consider the following data points.

First, in a hearing on Wednesday, Intelligence Community Inspector General Charles McCullough suggested that the forensic evidence found after the bombing might have alerted authorities to Tamerlan Tsarnaev’s radicalization.

Senator Tom Carper: If the Russians had not shared their initial tip, would we have had any way to detect Tamerlan’s radicalization?

[McCullough looks lost.]

Carper: If they had not shared their original tip to us, would we have had any way to have detected Tamerlan’s radicalization? What I’m getting at here is just homegrown terrorists and our ability to ferret them out, to understand what’s going on if someone’s being radicalized and what its implications might be for us.

McCullough: Well, the Bureau’s actions stemmed from the memo from the FSB, so that led to everything else in this chain of events here. You’re saying if that memo didn’t exist, would he have turned up some other way? I don’t know. I think, in the classified session, we can talk about some of the post-bombing forensics. What was found, and that sort of thing. And you can see when that radicalization was happening. So I would think that this would have come up, yes, at some point, it would have presented itself to law enforcement and the intelligence community. Possibly not as early as the FSB memo. It didn’t. But I think it would have come up at some point noting what we found post-bombing.

Earlier in the hearing (around 11:50), McCullough described reviewing evidence “that was within the US government’s reach before the bombing, but had not been obtained, accessed, or reviewed until after the bombing” as part of the IG Report on the attack. So some of this evidence was already in government hands (or accessible to it as, for example, GCHQ data might be).

We know some of this evidence not accessed until after the bombing was at NSA, because the IG Report says so. (See page 20)

Screen Shot 2014-04-12 at 12.37.13 PM

That may or may not be the same as the jihadist material Tamerlan posted to YouTube in 2012, which some agency claims could have been identified as Tamerlan even though he used a pseudonym for some of the time he had the account.

The FBI’s analysis was based in part on other government agency information showing that Tsarnaev created a YouTube account on August 17, 2012, and began posting the first of several jihadi-themed videos in approximately October 2012. The FBI’s analysis was based in part on open source research and analysis conducted by other U.S. government agencies shortly after the bombings showing that Tsarnaev’s YouTube account was created with the profile name “Tamerlan Tsarnaev.” After reviewing a draft of this report, the FBI commented that Tsarnaev’s YouTube display name changed from “muazseyfullah” to “Tamerlan Tsarnaev” on or about February 12, 2013, and suggested that therefore Tsarnaev’s YouTube account could not be located using the search term “Tamerlan Tsarnaaev” before that date.20 The DOJ OIG concluded that because another government agency was able to locate Tsarnaev’s YouTube account through open source research shortly after the bombings, the FBI likely would have been able to locate this information through open source research between February 12 and April 15, 2013. The DOJ OIG could not determine whether open source queries prior to that date would have revealed Tsarnaev to be the individual who posted this material.

20 In response to a DOJ OIG request for information supporting this statement, the FBI produced a heavily redacted 3-page excerpt from an unclassified March 19, 2014, EC analyzing information that included information about Tsarnaev’s YouTube account. The unredacted portion of the EC stated that YouTube e-mail messages sent to Tsarnaev’s Google e-mail account were addressed to “muazseyfullah” prior to February 12, 2013, and to “Tamerlan Tsarnaev” beginning on February 14, 2013. The FBI redacted other information in the EC about Tsarnaev’s YouTube and Google e-mail accounts.

The FBI may not have been able to connect “muazseyfullah” with Tamerlan, but that’s precisely what the NSA does with its correlations process; it has a database that does just that (though it’s unclear whether it would have collected this information, especially given that it postdated the domestic Internet dragnet being shut down).

Finally, there’s the matter of the Anwar al-Awlaki propaganda.

An FBI analysis of electronic media showed that the computers used by Tsarnaev contained a substantial amount of jihadist articles and videos, including material written by or associated with U.S.-born radical Islamic cleric Anwar al-Aulaqi. On one such computer, the FBI found at least seven issues of Inspire, an on-line English language magazine created by al-Aulaqi. One issue of this magazine contained an article entitled, “Make a Bomb in the Kitchen of your Mom,” which included instructions for building the explosive devices used in the Boston Marathon bombings.

Information learned through the exploitation of the Tsarnaev’s computers was obtained through a method that may only be used in the course of a full investigation, which the FBI did not open until after the bombings.

The FBI claims they could only find the stuff on Tamerlan’s computer using methods available in full investigations (this makes me wonder whether the FBI uses FISA physical search warrants to remotely search computer hard drives).

But that says nothing about what NSA (or even FBI, back in the day when they had the full time tap on Awlaki, though it’s unclear what kind of monitoring of his content they’ve done since the government killed him) might have gotten via a range of means, including, potentially, upstream searches on the encryption code for Inspire.

In other words, there’s good reason to believe — and the IC IG seems to claim — that the government had the evidence to know that Tamerlan was engaging in a bunch of reprehensible speech before he attacked the Boston Marathon, but they may not have reviewed it.

Let me be clear: it’s one thing to know a young man is engaging in reprehensible but purportedly protected speech, and another to know he’s going to attack a sporting event.

Except that this purportedly protected speech is precisely — almost exactly — the kind of behavior that has led FBI to sic multiple informants and/or undercover officers on other young men, including Adel Daoud and Mohamed Osman Mohamud, even in the absence of a warning from a foreign government.

And they didn’t here.

Part of the issue likely stems from communication failures between FBI and NSA. The IG report notes that “the relationship between the FBI and the NSA” was one of the most relevant relationships for this investigation. Did FBI (and CIA) never tell the NSA of the Russian warning? And clearly they never told NSA of his travel to Russia.

But part of the problem likely stems from the way NSA identifies leads — precisely the triaging process I examined here. That is, NSA is going to do more analysis on someone who communicates with people who are already targeted. Obviously, the ghost of Anwar al-Awlaki is one of the people targeted (though the numbers of young men who have Awlaki’s propaganda is likely huge, making that a rather weak identifier). The more interesting potential target would be William Plotnikov, the Canadian-Russian boxer turned extremist whom Tamerlan allegedly contacted in 2012 (and it may be this communication attempt is what NSA had in its possession but did not access until after the attacks). But I do wonder whether the NSA didn’t prioritize similar targets in countries of greater focus, like Yemen and Somalia.

It’d be nice to know the answer to these questions. It ought to be a central part of the debate over the NSA and its efficacy or lack thereof. But remember, in this case, the NSA was specifically scoped out of the heightened review (as happened after 9/11, which ended up hiding the good deal of warning the NSA had before the attack).

We’ve got a system that triggers on precisely the same kind of speech that Tamerlan Tsarnaev engaged in before he attacked the Marathon. But it didn’t trigger here.

Why not?

DOJ Doesn’t Want You to Know about Any Inspire-related FISA Surveillance Programs

I have written repeatedly about the case of Adel Daoud (see these two posts). The FBI caught him in a sting in 2012 where they had him perform bombing a night club. He was 18 at the time he caught.

While the government immediately informed Daoud they would use evidence derived from FISA against him, subsequent information — both comments Dianne Feinstein made during the debate about renewing the FISA Amendments Act and in further details we’ve gotten about back door searches — have suggested there might be something exotic about his targeting. (I have speculated he got identified via a back door search off a traditional FISA tap on someone — or something — else.)

On Monday, the government submitted its appeal of Judge Sharon Coleman’s decision.

DOJ complains that Judge Sharon Coleman did not reveal the classified things she finds so problematic about this case

Hilariously, key to their appeal is that Coleman didn’t lay out what it was she saw in the FISA materials she reviewed that led her to grant Daoud’s lawyer review of the underlying application materials.

Rather than address the specific facts of this case, the district court ordered disclosure because it believed that resolving the legality of the FISA collection is “best made in this case as part of an adversarial proceeding.” Id. at 5; SA 5. The court noted that “the adversarial process is integral to safeguarding the rights of all citizens” and quoted the Supreme Court’s language that the Sixth Amendment “right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Id.

[snip]

For FISA and its procedures to have meaning, the need for disclosure must stem from unique, case-specific facts, and not a general preference that would apply to all FISA litigation. After all, the statute mandates that courts review the FISA applications and orders in camera and ex parte before even contemplating disclosure. Thus, a court cannot order disclosure of FISA materials unless it concludes, based on facts specific to the FISA applications in that case, that it cannot accurately resolve the legality of the collection without such disclosure.

The legislative history of FISA reinforces the conclusion that disclosure cannot be “necessary” absent a case-specific reason that would justify a departure from the default ex parte process.

Think about this. The government is arguing Coleman was wrong to grant Daoud’s lawyers review — which would effectively allow a lawyer to conduct a secret review of the FISA application — without explaining in a court opinion what is so unique about this case that it merits such a review.

To do so, she’d either have to reveal the secrets the government says Daoud’s lawyers can’t review, even in secret. Or she’d have to issue a partially classified opinion that would deprive Daoud’s lawyers of an opportunity to support her decision on appeal.

DOJ complains that Coleman did not think their secret declarations they insist are persuasive are persuasive

DOJ is also angry that Coleman was not sufficiently impressed by their plea of national security, insisting that their sworn declarations were “persuasive” even though she obviously was not persuaded.

The “need-to-know” prerequisite matters all the more here because, as persuasively articulated in the sworn declarations from the Attorney General of the United States and the FBI’s Acting Assistant Director for Counterterrorism, these FISA applications deal with exceptionally sensitive issues with profound national security implications.

[CLASSIFIED MATERIAL REDACTED]

The district court’s order ignored these declarations and brushed aside the considered judgment of two senior executive branch officials who carefully concluded—based on the particular facts of this case—that disclosure may lead to an unacceptable risk of compromising the intelligence gathering process and undercut the FBI’s ongoing ability to pursue national security investigations. If permitted to stand, the district court’s order would impose upon the government a lose-lose dilemma: disclose sensitive classified information to defense counsel—an option unlikely to be sanctioned by the owners of that information—or forfeit all FISA-derived evidence against the defendant, which in many cases may be critical evidence for the government.

In other words, in spite of FISA’s clear provision allowing for review in certain circumstances, DOJ maintains that judges must accept whatever classified declarations they submit even if — as Coleman said — they’re not at all persuasive.

And while the government’s complaints are, in significant part, about ensuring that allowing defendants to review these applications doesn’t begin to happen more frequently, this is also a bid to ensure that any Title III review of FISA warrants remains narrowly limited to whether,

  • FISA rightly found probable cause that the target of the FISA warrant was an agent of a foreign power
  • The certifications submitted in support of the warrant complied with FISA’s requirements
  • FISA information was appropriately minimized

The last bullet, which I suspect is the most important one in this case, will measure not whether minimization meets the standards required under the Fourth Amendment, but whether DOJ (or rather NSA and/or FBI) followed the rules approved by FISA. And limiting the review to whether the government met the minimization procedures approved by FISA brackets off the question of whether this use of FISA abided the Fourth Amendment.

Elsewhere, DOJ describes the case they need to make differently.

A court reviewing the applications would have no difficulty determining that they established probable cause to believe that the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

That’s significant because if this does involve a back door search, it raises questions about the degree to which the government collects this data, at this point, just to find young Muslim men to catch in stings.

More bread-crumbs pointing to targeting off Inspire

Which is particularly important given the bread-crumbs in the opinion pointing to the targeting of Daoud off some kind of collection targeted at Inspire, AQAP’s magazine.

Read more

If One Judge Gives FISA Review, and Another Judge Gives FISA Review, All Hell Will Break Loose!

There have been a couple of developments on the government’s effort to continue its practice of shielding its dragnet from adversarial legal review behind the screen of FISA.

First, the 7th Circuit appears to want to punt on the question of whether or not Adel Daoud’s lawyer should be able to review the FISA materials used against him.

It claims (incorrectly, I suspect) it may not have the authority to review Sharon Coleman’s decision to give Daoud review.

A preliminary review of the short record indicates that the order appealed from may not be an appealable order.

Section 3731 of Title 18, United States Code, permits the United States to appeal certain rulings in a criminal case. The district court’s order of January 29, 2014, compelling disclosure of Foreign Intelligence Surveillance Act application materials to defense counsel having the necessary clearance, does not appear to fit within the statute’s list of orders that the government can appeal.

Meanwhile, in Oregon, the government has submitted its response to Mohamed Osman Mohamud’s discovery request for details of why the government didn’t tell him it had used FISA Section 702 to identify him before his trial. (h/t to Mike Scarcella on both documents)

I’ll come back to the substance of that response, as I think it shows the strategy the government will attempt to use to dig out of its discovery obligation hole in Section 702 cases.

But I wanted to point out footnote 19:

A district court order requiring the disclosure of FISA materials is a final order for purposes of appeal. See 50 U.S.C. § 1806(h). In the unlikely event that the Court concludes that disclosure of the classified FAA-related information that defendant requests may be required, given the significant national security consequences that would result from such disclosure, the government would expect to pursue an appeal. Accordingly, the government respectfully requests that the Court indicate its intent to do so before issuing any order, or that any such order be issued in such a manner that the United States has sufficient notice to file an appeal prior to any actual disclosure.

The government is pointing to what will surely be the core of the debate in the 7th Circuit, whether 50 USC 1806(h)‘s mention of Appeals Court review of disclosure decisions trumps  criminal code.

But it’s also revealing something else: with its suggestion that a judge might rule in favor of discovery and start handing over FISA warrant applications willy nilly, and therefore it should get warning before any judge rules against it, it betrays a concern that if judges actual so rule (even assuming they can appeal), it will harm their case.

The government seems to be admitting that one of the only things preventing judges from granting such review is the long history DOJ can point to when no judge has granted such review (which is a line they always use when defendants try to get such review).

It’s the taboo, the unquestioning deference courts have granted every time the Attorney General has claimed such review would harm national security without actually explaining why, that prevents defendants from getting review.

Not any real risk to national security.

And DOJ seems anxious to maintain the power of that taboo at all costs.

One more bit of ironic arrogance in this footnote: the government is suggesting it should get advance review on a ruling about the consequences they might suffer for failing to give a defendant advance review.

Update: I just noticed that Mohamud’s lawyer gave notice of the Daoud ruling and indicated that like Daoud’s lawyer, he also has TS/SCI clearance.

Update: Whoo boy. DOJ is panicking, I think. They’ve suggested that if either of two statutes they cite don’t give the 7th Circuit jurisdiction they should issue a writ of mandamus.

Finally, if the two statutory bases for appellate jurisd iction set forth above were not available, this Court would still have jurisdiction to issue a writ of mandamus to revers e the district court’s order pursuant to 28 U.S.C. § 1651.