David Kris

The Precedent for Using Presidential National Emergency Proclamations to Expand Surveillance

On September 14, 2001 — 3 days before signing an expansive Memorandum of Notification that would authorize a suite of covert operations against al Qaeda, and 4 days before signing an AUMF that would give those operations the appearance of Congressional sanction — President Bush declared a National Emergency in response to the 9/11 attack.

The following day, according to a 2002 motion to the FISC to be able to share raw FISA-derived information with CIA and NSA (this was liberated by Charlie Savage), FISC suspended its rules on sharing intelligence derived under FBI-obtained FISA warrants with criminal investigations (see page 26 of this paper for background).

On September 15, 2001, upon motion of the Government, the [FISA] Court suspended the “Court wall,” certification, and caveat requirements that previously had applied to Court-authorized electronic surveillance and physical search of [redacted] related targets, while directing that the FBI continue to apply the standard minimization procedures applicable in each case. As stated in the order resulting from that motion, the Court took this action in light of inter alia:

“the President’s September 14, 2001, declaration of a national emergency and the near war conditions that currently exist;”

“the personal meeting the Court had with the Director of the FBI on September 12, 2001, in which he assured the Court of the collection authority requested from this Court in the face of the nature and scope of the multi-faced response of the United States to the above-referenced attacks;

“the need for the Government to rapidly disseminate pertinent foreign intelligence information to appropriate authorities.”

Ten days after FISC dismantled its role in “the wall” between intelligence and criminal investigations in response to the Executive’s invocation of a National Emergency, on September 25, 2001, John Yoo finished an OLC memo considering the constitutionality of dismantling the wall by replacing “the purpose” in FISA orders with “a purpose.”

A full month later, on October 25, 2001, Congress passed the PATRIOT Act. For over 13 years, analysis of the PATRIOT Act has explained that it eliminated “the wall” between intelligence and criminal investigations by replacing language requiring foreign intelligence be “the purpose” of FISA wiretaps with language requiring only that that be “a significant purpose” of the wiretap. But the FISC suspension had already removed the biggest legal barrier to eliminating that wall.

In other words, the story we’ve been telling about “the wall” for over 13 years is partly wrong. The PATRIOT Act didn’t eliminate “the wall.” “The wall” had already been suspended, by dint of Executive Proclamation and a secret application with the FISC, over a month before the PATRIOT Act was initially introduced as a bill.

FISC suspended it, without congressional sanction, based on the President’s invocation of a National Emergency.

That’s not the only case where the Executive invoked that National Emergency in self-authorizing or getting FISC to authorize expansive new surveillance authorities (or has hidden the authorities under which it makes such claims).

Perhaps most illustratively, on May 6, 2004, Jack Goldsmith pointed to the National Emergency when he reauthorized most aspects of Stellar Wind.

On September 14, 2001. the President declared a national emergency “by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” Proclamation No. 7463, 66 Fed. Reg. 43, !99 (Sept. 14, 2001). The United States also launched a massive military response, both at home and abroad. In the United States, combat air patrols were immediately established over major metropolitan areas and were maintained 24 hours a day until April 2002, The United States also immediately began plans for a military response directed at al Qaeda’s base of operations in Afghanistan.

Only after invoking both the Proclamation and the immediate military response that resulted did Goldsmith note that Congress supported such a move (note, he cited Congress’ September 14 passage of the AUMF, not Bush signing it into law on September 18, thought that may be in part because Michael Hayden authorized the first expansions of surveillance September 14; also remember there are several John Yoo memos that remain hidden) and then point to an article on the friendly-fire death of Pat Tillman as proof that combat operations continued.

On September 14, 2001, both houses of Congress passed a joint resolution authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September I I. Congressional Authorization § 2(a). Congress also expressly acknowledged that the attacks rendered it “necessary and appropriate” for the United States to exercise its right “to protect United States citizens both at home and abroad,” and acknowledged in particular that the “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” id. pmbl. Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See, e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at AI (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remains of the Taliban and al Qaeda”).

That is, even in an OLC memo relying on the AUMF to provide legal sanction for President Bush’s systematic flouting of FISA for 2.5 years, Goldsmith relied primarily on the National Emergency Proclamation, and only secondarily on Congress’ sanction of such invocation with the AUMF.

The White Paper released in 2006 largely regurgitating Goldsmith’s opinion for more palatable consumption mentions the AUMF first in its summary, but then repeats Goldsmith’s emphasis on the Proclamation in the background section (see pages 2 and 4).

Paragraphs that may discuss such authorizations get redacted in the 2006 application to move content collection under FISC (see page 6). The entire background section (starting at page 5) of the initial Internet dragnet application is also redacted. While we can’t be sure, given parallel claims made in the same 2004 to 2006 period, it seems likely those memoranda also repeated this formula.

Such a formula was definitely dropped. The 2006 memorandum in support of using Section 215 to create a phone dragnet included no mention of authorities. The 2007 memorandum to compel Yahoo to fulfill Protect American Act orders cites PAA, not Emergency Declarations.

But the formula was retained in all discussions of the Administration’s illegal wiretap program in secret declarations submitted in court in 2006, 2007, and 2009, being repeated again in an unclassified 2013 declaration. While these declarations likely all derive, at least in part, from Goldsmith’s memo, it’s worth noting that the government has consistently suggested it could conduct significant surveillance programs without Congressional sanction by pointing to the that National Emergency Proclamation.

This is the precedent I meant to invoke when I expressed concern about President Obama’s expansive Executive Order of the other day, declaring a National Emergency because of cybersecurity.

Ranking House Intelligence Member Adam Schiff’s comment that Obama’s EO is “a necessary part of responding to the proliferation of dangerous and economically devastating cyber attacks facing the United States,” but that it will be “coupled with cyber legislation moving forward in both houses of Congress” only adds to my alarm (particularly given Schiff’s parallel interest in giving Obama soft cover for his ISIL AUMF while having Congress still involved).  It sets up the same structure we saw with Stellar Wind, where the President declares an Emergency and only a month or so later gets sanction for and legislative authorization for actions taken in the name of that emergency.

And we know FISC has been amenable to that formula in the past.

We don’t know that the President has just rolled out a massive new surveillance program in the name of a cybersecurity Emergency (rooted in a hack of a serially negligent subsidiary of a foreign company, Sony Pictures, and a server JP Morgan Chase forgot to update).

We just know the Executive has broadly expanded surveillance, in secret, in the past and has never repudiated its authority to do so in the future based on the invocation of an Emergency (I think it likely that pre FISA Amendments Act authorization for the electronic surveillance of weapons proliferators, even including a likely proliferator certification under Protect America Act, similarly relied on Emergency Proclamations tied to all such sanctions).

I’m worried about the Cyber Intelligence Sharing Act, the Senate version of the bill that Schiff is championing. But I’m just as worried about surveillance done by the executive prior to and not bound by such laws.

Because it has happened in the past.

Update: In his October 23, 2001 OLC memo authorizing the President to suspend the Fourth Amendment (and with it the First), John Yoo said this but did not invoke the September 14, 2001 proclamation per se.

As applied to the present circumstances, the [War Powers Resolution] signifies Congress’ recognition that the President’s constitutional authority alone enables him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them, if such actions are, in his judgment, a necessary and appropriate response to the national emergency created by those incidents.

Update: Thanks to Allen and Joanne Leon for the suspend/suspect correction.

Why Did ODNI Fight So Hard to Hide the Census Opinion?

Congratulations to EFF, which yesterday liberated another document on Section 215: a 2010 OLC opinion finding that the Department of Commerce (then counseled by Cameron Kerry who, curiously enough, hosted the Bob Litt speech the other day) did not have to turn over data to the FBI under Section 215 (which was the only one of many statutes it reviewed that OLC considered possibly binding).

After reviewing a bunch of legislative language on both Congress’ intent to provide affirmative confidentiality to census data and on its silence on census data during the PATRIOT Act reauthorization debates, Deputy Assistant Attorney Genereal Jeannie Rhee concluded,

We therefore conclude that section 215 should not be construed torepeal otherwise applicable Census Act protections for covered census information, such that they would require their disclosure by the Department of Commerce.Because no other PatriotAct provision that you have, identified, nor any such provision that we have separately reviewed, would appear to have that effect, we agree that the Patriot Act, as amended, does not alter the. confidentiality protections in sections 8, 9, and 214 of the Census Act in a manner that could require the Secretary of Commerce to disclose such information.

Many outlets are hailing this as OLC noting some limits to the otherwise unlimited demands the government thinks it can make under Section 215.

But I’m left puzzled.

Why did the Administration fight so hard to keep this secret? This suit has been going on for years, and ODNI tried to keep this secret long after reams of more interesting — and more classified — information got released on the phone dragnet and related authorities.

I can think of several possible reasons (and these are all speculative):

FISC decisions

Perhaps the government thinks this might endanger FISC’s decision that Section 215 does repeal two other privacy statutes. In 2008, Judge Reggie Walton found that Section 215 overrode the privacy protections for call data under ECPA [SCA]. And in 2010, John Bates found that it overrode the privacy protections in RFPA. Effectively, both decisions found that the government could do with Section 215 (and court review) what the FBI could otherwise do with NSLs. But of course, by doing them under Section 215, the government managed to do them in greater bulk, and probably with some exotic requests added in. At least the ECPA opinon was probably elicited by DOJ IG pointing out that the NSL rule did prevent other access to such data. In both opinions, the FISC reviewed the absence of legislative language and used it to conclude something dissimilar to what OLC concluded here: that in the absence of language, it provided permission. Does ODNI think the publication of this OLC opinion will make it easier to challenge the use of Section 215 for phone and financial records?

Update: This passage, from ACLU’s challenge to the phone dragnet, more eloquently suggests this is precisely why ODNI wanted to bury this opinion. It cites the importance of statutory construction, and then notes ties it to earlier statements on the Census Act.

On its face, Section 215 provides the government with general authority to compel the disclosure of tangible things. However, the Stored Communications Act (“SCA”) specifically addresses the circumstances in which the government can compel the disclosure of phone records in particular. The SCA provision states that a “provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service . . . to any governmental entity.” 18 U.S.C. § 2702(a)(3). While the SCA provision lists exceptions to its otherwise categorical prohibition, see id. §§ 2702(c), 2703, Section 215 is not among them. This omission is particularly notable because Congress enacted sections 2702(c) and 2703 in the same bill as Section 215.

The district court held that Section 215 constitutes an implicit exception to Section 2702 because Section 215 orders “are functionally equivalent to grand jury subpoenas.” SPA027. But well-settled rules of statutory construction require that the list of exceptions in section 2702 and 2703 be treated as exhaustive. See United States v. Smith, 499 U.S. 160, 167 (1991) (“Where Congress explicitly enumerates certain exceptions . . . additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” (quotation marks omitted)). Congress has enacted a comprehensive scheme to regulate the government’s collection of electronic communications and records relating to those communications. That comprehensive scheme, which addresses the precise circumstances in which the government can collect the records at issue in this case, must be given precedence over provisions that are more general. See In re Stoltz, 315 F.3d 80, 93 (2d Cir. 2002) (holding that it is a “basic principle of statutory construction that a specific statute . . . controls over a general provision” (quoting HCSC–Laundry v. United States, 450 U.S. 1, 6 (1981))); see also PCLOB Report 92–93.

Indeed, the Justice Department has itself acknowledged that it would contravene the structure of the SCA to “infer additional exceptions” to the “background rule of privacy” set out in section 2702(a). See Office of Legal Counsel, Memorandum Opinion for the General Counsel [of the] FBI: Requests for Information Under the Electronic Communications Privacy Act 3 (Nov. 5, 2008), http://1.usa.gov/1e5GbvC (concluding that the FBI could not use national security letters to compel the production of records beyond those specifically exempted from the general privacy rule). Moreover, it has acknowledged that principle with respect to Section 215 itself, concluding that the statute does not override the privacy protections of the Census Act, 13 U.S.C. §§ 8, 9, 214. Letter from Ronald Weich, Assistant Attorney General, to Hon. Nydia Velázquez, Chair, Congressional Hispanic Caucus, U.S. House of Representatives (Mar. 3, 2010), http://wapo.st/aEsETd. [my emphasis]

The Second Circuit already sounded like it wanted to boot the dragnet on statutory grounds (if they did, doing so should have the same effect for financial records as well). And the release of this opinion may well help them do that.

Presumptive Section 215 Collection

In 2010, this OLC memo reveals, DOJ’s National Security Division — then headed by David Kris — believed that the government ought to be able to use Section 215 to obtain raw census data (the rest of DOJ, curiously, did not agree). Kris lost that battle.

But data very similar to census data is readily available, from private marketing brokers. If NSD saw the need to obtain this kind of data, it’s not clear what would prevent the government from just obtaining very similar data from marketing firms. Should we assume it has done so?

Census data in racial profiling

I also wonder whether this came up in the context of ways both the NYPD (with CIA assist) and FBI have used census data to conduct their racial profiling efforts. Both have relied on published (aggregated) census data to find which neighborhoods to spy on. Was there some kind of effort to fine tune this racial profiling by using the underlying data?

NCTC’s access to internal databases

Finally, I wonder whether ODNI’s reticence about this OLC opinion pertains to its own National Counterterrorism Center guidelines  on information sharing, which permit NCTC to demand entire databases from other government agencies if it says the database includes information on terrorists (effectively making us all terrorists). Discussions about doing so started in 2011 and resulted in broad new data sharing guidelines in 2012, so that change actually took place after this opinion. Also note the opinion’s interesting timing: January 4, 2010, so probably too soon after the UndieBomb attempt on Christmas day in 2009 to be considered part of the expanded information sharing that happened after that attack, though not so long after the Nidal Hassan attack.

Whatever the timing, I’m curious how this opinion has influenced discussions about and limits to that data-sharing initiative — and how it should have influenced such data sharing?

 

The FBI PRTT Documents: The Paragraph 31 PCTDD Technique

I’ve been working my way through a series of documents in EPIC’s FOIA for FISA PRTT documentsThis is the last of a series of posts where I unpack the Internet dragnet documents. This post tracks what the reports to Congress reveal (largely about the language the government used to hide programs). And this post shows that the government probably used combined PRTT and Section 215 orders to get real-time cell location. The last chunk of documents withheld pertain to what I’ll call “the Paragraph 31″ technique, after the entirely redacted paragraph in the first David Hardy declaration describing it. The technique is some application of what gets treated as Post Cut-Through Dialed Digits (PCTDD), those digits a person enters after being connected to a phone number, which might include phone tree responses, credit card information, or password information.

The PCTDD DIOG section withheld

We know Paragraph 31 pertains to PCTDD because one of the documents withheld — described as document 1 in the first Hardy declaration — is a section of the Domestic Investigations and Operations Guide that pertains to PCTDD.

The first document is comprised of pages 186-189 of the DIOG. The DIOG is a manual used by FBI Special Agents in conducting and carrying out investigations. This particular excerpt of the DIOG provides a step-by-step guide in assisting Special Agents in determining whether to utilize a specific method in collecting information such as (1) when to use the method and technique; (2) factors to consider when making this determination; (3) how to go about using the specific method and technique; and (4) the type of information that can be gleaned from it

The paragraph cites paragraph 31, so we know it’s the same method. As reflected by the Vaughn Index, the pages in question appear to be from the 2008 DIOG, not the 2011 one. The pagination of the two documents reinforces that. There’s no way to work the pagination of the 2011 DIOG to land in the PRTT section, whereas those page numbers do point to the PRTT section in the 2008 DIOG. The section in question starts at PDF 79. The key unredacted part reads,

The definition of both a pen register device and a trap and trace device provides that the information collected by these devices “shall not include the contents of any communication.” See 18 U.S.C. § 3127(3) and (4). In addition, 18 U.S.C. § 3121(c) makes explicit the requirement to “use technology reasonably available” that restricts the collection of information “so as not to include the contents of any wire or electronic communications.” “Content” includes any information concerning the substance, purport, or meaning of a communication. See 18 U.S.C. §2510(8). When the pen register definition is read in conjunction with the limitation provision, however, it suggests that although a PR/TT device may not be used for the express purpose of collecting content, the incidental collection of content may occur despite the use of “reasonably available” technology to minimize, to the extent feasible, any possible over collection while still allowing the device to collect all of the dialing and signaling information authorized.

In addition to this statutory obligation, DOJ has issued a directive in [redacted half line in 2011 DIOG] to all DOJ agencies requiring that no affirmative investigative use may be made of PCTDD incidentally collected that constitutes content, except in cases of emergency–to prevent an immediate danger of death, serious physical injury, or harm to the national security.

The criminal context of FBI’s PCTDD FISA usage

As with the “hybrid” use of PRTT and toll record orders, the concern about PCTDD may have had some tie to criminal proceedings.

On May 24, 2002, Deputy Attorney General Larry Thompson issued a directive on “avoiding collection and investigative use of content in the operation of Pen Registers.” It explicitly said that FISA was “outside the scope of this Memorandum.”

In 2006 and 2007, the government applied for Pen Registers in EDNY, including PCTDD. The magistrate judge denied the request for PCTDD as content, which led to a process of reconsideration and further briefing, including amicus briefs from EFF and Federal Defenders of NY. [Update: I’ve been reliably informed that Kollar-Kotelly’s request was a response to a MJ Stephen Smith ruling issued in Texas in July 2006.]

During this period, on August 7, 2006, Colleen Kollar-Kotelly ordered briefing in docket PRTT 06-102 on how FBI was fulfilling its obligation, apparently under the 2002 DOJ directive FBI maintained did not apply to FISA, not to affirmatively use PCTDD for any investigative purpose.  PDF 39-40

Judge Kotelly has ordered the FBI to submit a report no later than September 25 (2006). This report must contain:

(1) an explanation of how the FBI is implementing its obligation to make no affirmative investigative use, through pen register authorization, of post-cut-through digits that do not constitute call dialing, routing, addressing or signaling information, except in a rare case in order to prevent an immediate danger of death, serious physical injury or harm to the National Security, addressing in particular: a) whether post-cut-through digits obtained via FISA pen register surveillance are uploaded into TA, Proton, IDW, EDMS, TED, or any other FBI system; and b) if so what procedures are in place to ensure that no affirmative investigative use is made of postcut-through digits that do not constitute call dialing, routing, addressing or signaling information, including whether such procedures mandate that this information be deleted from the relevant system.

(2) an explanation of what procedures are in place to ensure that the Court is notified, as required pursuant to the Courts Order in the above captioned matter, whenever the government decides to make affirmative investigative use of post-cut-through digits that do not constitute call dialing, routing, addressing or signaling information in order to prevent an immediate danger of death, serious physical injury, or harm to the national security.

At the time, at least some of FBI’s lawyers believed that for FISA Pen Registers, FBI retained all the PCTDD. PDF 38

When DSC 3000 is used for a FISA collection, doesn’t the DCS 3000 pass all to the [redacted](DSC 5000) including the PCTDD–in other words for FISAs the DCS3000 does NOT use the default of not recoding [sic] the PCTTD???? [sic]

This report — dated September 25, 2006 — appears to be the report Kollar-Kotelly requested. It implores her not to follow [redacted], which appears to is a reference the EDNY court Texas decision.

That report is followed by this one — which was submitted on November 1, 2006 — which appears to propose new procedures to convince her to permit the FBI to continue to collect and retain PCTDD.

In other words, during the early part of the period when the FBI was bumping up against a criminal standard prohibiting the retention of PCTDD under protection of minimization procedures, Judge Kollar-Kotelly required FBI to prove its existing (and new) minimization procedures to ensure they were strong enough to comport with the law.

The original PCTDD question was still burbling away in EDNY, however, and in November 2008 Judge Nicholas Garaufis mooted the question of PCTDD based on the government’s representation that it would delete the information when it received it.

On June 11, 2008, the Government applied to Judge Orenstein for authorization to install and use a pen register and trap and trace device on two wireless telephones (the “SUBJECT WIRELESS TELEPHONES”). (Gov. Br. at 5.) The Government requested, inter alia, an Order authorizing the recording of post-cut-through dialed digits (“PCTDD”) via pen register. PCTDD are digits dialed from a telephone after a call is connected or “cut through.” In the Matter of Applications, 515 F.Supp.2d 325515F.Supp.2d325, 328 (E.D.N.Y.2007) *204 (“Azrack Opinion”). Because PCTDD sometimes transmit information such as bank account numbers and Social Security numbers which constitutes “contents of communications,” and because the Pen Register Statute defines a pen register as “a device or process which records or decodes dialing … or signaling information… provided, however, that such information shall not include the contents of any communication,” 18 U.S.C. § 3127(3) (emphasis added), Judge Orenstein denied the Government’s request for authorization to record PCTDD. The Government subsequently appealed Judge Orenstein’s denial of its request to this court, asking this court to authorize it to record PCTDD.

On September 23, 2008, in response to the court’s request for clarification of the specifics of its request for pen register data, the Government informed the court that the law enforcement agency involved in the investigation of the SUBJECT WIRELESS TELEPHONES will configure its computers so as to immediately delete all PCTDD received from the provider. (Government’s September 23, 2008 letter to the court.) Therefore, as the pen registers sought by the Government in this application will not “record” or “decode” content within the meaning of the Pen Register Statute, the legal question presented by the Government in its appeal is moot.[3] As the Government is entitled to the information it now seeks, the court directs the Magistrate Judge to issue, if still necessary, an order authorizing the installation of the pen registers on the SUBJECT WIRELESS TELEPHONES that is consistent with the representations in the Government’s letter of September 23, 2008.

Note that Garaufis also embraced the hybrid theory other judges had started rejecting in 2005, which I believe lies behind the BRPR orders.

Behind the scenes, there appear to have been changes to the way the government dealt with PCTDD information under FISA collection. This August 17, 2009 Memo of Law appears to revisit the issue (perhaps in light of the final ruling in EDNY in 2008 and/or as part of the PRTT review of that year). It argues over some of the same Pat Leahy language as the other documents do. It appears to refer to the November 2006 document. It discusses the May 24, 2002 over-collection directive as applying only to the criminal context.

But it also describes some changes implemented in July and December 2008 (it’s possible there are references to revisions to the DIOG in this section).

That’s one reason why several changes between the 2008 and 2011 DIOG are of interest. In addition to the redacted passage on DOJ’s 2002 directive (above) probably affirmatively asserting now that the directive does not apply to FISA, there are two other changes in the Pen Register that are unclassified between the two DIOGs. First, the 2011 one reflects a 2010 change in FISC procedure (see Procedure 15 and Section 18 .6.9.5.1.4), no longer permitting (or requiring) the sequestration of over-collected information at FISC. In addition, the 2011 DIOG appears to show an extra use of PCTDD collection (showing 7 total across subsections A and B, as compared to 6).

What becomes clear reviewing the public records (these reports say this explicitly) is that the 2002 DOJ directive against retaining PCTDD applies to the criminal context, not the FISA context. When judges started challenging FBI’s authority to retain PCTDD that might include content under criminal authorities, FBI fought for and won the authority to continue to treat PCTDD using minimization procedures, not deletion. And even the standard for retention of PCTDD that counts as content permits the affirmative investigative use of incidentally collected PCTDD that constitutes content in cases of “harm to the national security.”

Whateverthefuck that is.

Which is, I guess, how FBI still has 7 uses of PCTDD, including one new one since 2008.

The details on the withheld documents

Which brings us to the remaining documents on Paragraph 31 the FBI is withholding. In addition to the DIOG and a Westlaw print out (which I would guess is the opinion in the criminal case), there are 4 memoranda and one report described in the first Hardy Declaration, as well as a PRBR motion to retain data that I wouldn’t be surprised if FBI used to request the authority to retain, under FISA authority, the materials it said it wouldn’t obtain in the EDNY case (in any case, it requested approval to retain some data collected under a hybrid PRBR order). One of the documents in that bunch includes both electronic surveillance (the collection of content) and the use of a pen register (ostensibly non-content).  The second Hardy declaration includes 9 FISC orders pertaining to the method, along with a District Court order pertaining to it (which might be that 2008 opinion).

Significantly, 4 of those orders are Primary Orders, suggesting multiple Secondary Orders to providers of some sort, and a program of some bulk. And those documents are only the ones that got shared with Congress, so only the ones that reflected some significant decision.

The declarations don’t tell us much about how they’re using this PCTDD information. Here are the most informative passages (some of which show up in both).

The ability to conduct electronic surveillance through the installation and use of pen registers and trap and trace devices has proven to be an indispensable investigative tool and continues to serve as a building block in many of the FBI’s counterterrorism and counterintelligence investigations. The specific type of electronic surveillance has resulted in numerous benefits by providing the FBI valuable substantive information in connection with national security investigations. The information gathered has either confirmed prior investigative information or has contributed to the development of additional investigative information, and has been invaluable in providing investigative leads.

[snip]

[T]he release of such information would reveal actual intelligence activities and methods used by the FBI against specific targets who are the subject of foreign counterintelligence investigations or operations; identify a target of a foreign counterintelligence investigation; or disclose the intelligence gathering capabilities of the activities or methods directed at specific targets.

[snip]

The information protected under this [7(E)] exemption contain details about sensitive law enforcement techniques used by the FBI in gathering valuable intelligence information in current and prospective criminal, counterintelligence, and national security investigations.

What I find most interesting about these declarations, however, is the near total (maybe even total) silence about terrorism. These are used for “national security” and “counterintelligence” investigations, but nothing explicitly described as a counterterrorism investigation.

While I can see some especially useful applications of PCTDD information in the CI context — imagine how valuable it would be to know the voicemail passwords of Chinese targets, for example — I also wonder whether the FBI is using this stuff primarily for cyber targets. Whatever it is, the government has apparently argued for and maintained the authority to retain PCTDD data in the FISA context, with the ability to use actual content in the event of possible harm to national security.

The Foreign Metadata Problem

In this post, I argued that a likely explanation for the NSA’s limits on collecting domestic cell phone data stem from a decision Verizon made in 2009 to stop participating in an FBI call records program. I’m not sure if I’m right about the cause (I know I’m not right about the timing), but I based part of my argument on how the FISA Court resolved a problem with telecoms turning over foreign data in 2009. And that resolution definitely indicates there’s something different about the way Verizon produces dragnet data from how AT&T does (Sprint is probably a third case, but not as important for these purposes).

Let me be clear: Verizon was not the only telecom to have the problem. It affected at least one other telecom; I believe it may have affected all of them. But the FISC resolved it differently with Verizon, which I believe shows that Verizon complies with the Section 215 orders in different fashion than AT&T and Sprint.

The problem was first identified when, in May 2009, Verizon informed the NSA it had been including foreign-to-foreign records in the data it provided to the NSA. Here’s how David Kris explained it in his report accompanying the phone dragnet end to end report.

NSA advised that for the first time, in May 2009, [redacted–Verizon] stated it produced foreign-to-foreign record pursuant to the Orders. [redacted–Verizon] stopped its production of this set of foreign-to-foreign records on May 29, 2009, after service of the Secondary Order in BR 09-06, which carves out foreign-to-foreign records from the description of records to be produced. (19)

In an accompanying declaration Keith Alexander provided more detail.

In May 2009, during a discussion between NSA and [redacted–Verizon] regarding the production of metadata, a [redacted–Verizon] representative stated that [redacted] produced the records [redacted] pursuant to the BR FISA Orders. This was the first indication that NSA had ever received from [redacted–Verizon] of its contrary understanding. At the May 28, 2009, hearing in docket number BR 09-06, the government informed the Court of [redacted redacted]. To address the issue, based on the government’s proposal, the Court issued a Secondary Order to [redacted] in docket number BR 09-06 that expressly excluded foreign-to-foreign call detail records from the scope of records to be produced. On May 29, 2009, upon service of the Secondary Order in docket number  BR 09-06, [redacted–Verizon] ceased providing foreign-to-foreign records [redacted]. (42/PDF67)

Almost every dragnet order since that May 29, 2009 one has broken its production order out into two subparagraphs to reflect this change.

Screen Shot 2014-11-09 at 11.28.29 AM

We can be virtually certain that Verizon is this provider, because the Verizon secondary order leaked by Edward Snowden includes the language excluding foreign-to-foreign data. That long redaction likely hides Verizon’s full name under this program, “Verizon Business Network Services, Inc. on behalf of MCI Communication Services Inc., d/b/a Verizon Business Services (individually and collectively “Verizon”), which is the name initially used in the secondary order.

Additionally, ODNI originally released the January 20, 2011 primary order with the paragraph that clarifies this with Verizon’s name unredacted. The paragraph remains in the dragnet orders, even after Verizon and Vodaphone split earlier this year (though if the split affected this issue, they may have hidden the fact by retaining the paragraph, given that they’re now anticipating declassification of the orders).

Less than a month after this incident, on June 25, the NSA finished its End-to-End report, which reported just the Verizon issue. Sometime between then and July 9, the FISC appears to have realized one of the other providers had a similar problem. The July 9, 2009 dragnet order, in the only exception I know to the two-part production order, looked like this:

Screen shot 2014-11-09 at 2.07.33 PM

The production order is to plural custodians of records, meaning at least two providers must be named. But it applies the Verizon rules to all of the named providers.

The order also requires an explanation for inclusion of the foreign-to-foreign records (see the bullet at 16-17). It is redacted in the released order but the DOJ submission (see page 6) shows that Judge Walton ordered,

a full explanation of the extent to which NSA has acquired call detail records of foreign-to-foreign communications from [redacted–too long to just be Verizon] pursuant to orders of the FISC, and whether the NSA’s storage, handling, and dissemination of information in those records, or derived therefrom, complied with the Court’s orders;

The September 3, 2009 order reverts to the two-paragraph structure. But it also orders retroactive production from one of the providers (AT&T or Sprint, probably the latter based on redaction length) named in the first paragraph (I first wrote about this here).

In addition, the Custodian of Records of [redacted] shall produce to NSA upon service of the appropriate Secondary Order an electronic copy of the same tangible things created by [redacted] for the period from 5:11 p.m. on July 9, 2009 to the date of this Order, to the extent those records still exist.

And adds a requirement that NSA report on any significant changes in reapplications, including on any changes to how the government obtains the data from carriers.

Any application to renew or reinstate the authority granted herein shall include a report describing: (1) the queries made since the end of the reporting period of the last report filed with the Court; (ii) the manner in which NSA applied the procedures set forth in paragraph (3)C above; and (iii) any proposed changes in the way in which the call detail records would be received from the carriers and any significant changes to the systems NSA uses to receive, store, process, and disseminate BR metadata. [my emphasis]

The DOJ report provides further evidence that at least one other provider provided foreign-to-foreign records. When Kris introduces this problem (see page 18), he references a three part discussion in Alexander’s declaration.

Screen shot 2014-11-09 at 3.52.19 PM

You can see the heading for the third provider on page 46/PDF 71 of the Alexander declaration.

So the report appears to have commented on all three providers. The problem clearly affected two of them.

But FISC only retains the clarification for Verizon.

As I said, I appear to be wrong about the timing of this. I had suggested it was tied to Verizon deciding not to reup its contract under the FBI phone program in 2009. That almost certainly had to have happened (as Charlie Savage noted to me via Twitter, the Exigent Letter IG Report was focused on AT&T, MCI, and Verizon, and one of the latter two, which means basically one part of Verizon, backed out).

But the End-to-End Report makes it clear Verizon first started turning over this data in January 2007.

This foreign-to-foreign metadata started coming into NSA in January 2007. (15)

There was not even a dragnet order signed in January 2007, so it can’t be tied primarily to the phone dragnet. It also preceded the end of the on-site phone provider program (which ended in December 2007) and even the release of the first NSL IG Report in March 2007, which led the providers to get squirrelly (see page 191 for these dates).

The details regarding the potential problems with Verizon’s provision of foreign-to-foreign records suggests this may have something to do with upstream production (Verizon had been providing upstream records to the NSA for years, but it only came under the oversight of the FISC in January 2007).

Furthermore, because the records are records of foreign-to-foreign communications, almost all of them do not concern the communications of U.S. persons. To the extent any of the records concern the communications of U.S. persons, such communications would be afforded the same protections as any other U.S. person communication [redacted] authorities. Id. at 43. (19)

[snip]

almost all of them concern the communications of non-U.S. persons located outside the United States. If NSA were to find that any of the records concerned U.S. persons, their dissemination would be governed by the terms of USSID 18 which are the procedures established pursuant to EO 12333, as amended. (68)

The discussion of records that might “concern the communications” sounds like an “about” search (though I’m not sure of what).

All that said, AT&T should have had the same upstream “about” obligations starting in January 2007 that Verizon did. I suspect (based on my guess that Sprint is the production that got shut down) the order in the July 9, 2009 order is the only instruction they ever got to stop providing foreign-to-foreign records. Yet FISC felt the need — still feels the need — to keep that explicit order to Verizon in every single primary order.

Mind you, all this shows that Verizon was able to shut down the foreign production immediately, on the same day. So it’s clear they can shut down certain kinds of production.

All this seems to suggest that — in addition to at least some part of Verizon withdrawing from the FBI’s records program, and to Verizon not retaining records for the same length of time AT&T does — Verizon also produces phone dragnet data differently than AT&T does.

Awlaki Really Seems to Have Been Drone-Killed Exclusively on Presidential Authority

Jason Leopold liberated another White Paper — this one dated May 25, 2011 —  on drone killing.

Man. It’s just like they kept throwing legal arguments against the wall in hopes that one saying “You can kill Americans with no due process” would stick. And since this one is not signed, we may never know what lawyer gets rewarded with a lifetime judicial sinecure!

I’ll have a lot more to say on the logistics of all this in a later post.

But I want to comment briefly on a point that Kevin Jon Heller made in his post on the memo (remember, Heller’s the guy who forced David Barron to write more than 7 pages to authorize killing Awlaki by raising a statute Barron hadn’t considered).

Heller still sees absolutely no justification for CIA being granted public authority to kill Americans in this White Paper.

Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlsteinhas suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

I don’t think those redacted lines he points to are a reference directly to statute.

I think it’s a reference to the September 17, 2001 Gloves Come Off Memorandum of Notification which we know authorized killing high value al Qaeda figures with drones.

After all, that’s precisely where Stephen Preston — then CIA’s General Counsel before he moved onto bigger and better General Counseling at DOD — said he’d look to for the authority for CIA to carry out certain operations (and when he gave this speech, it was regarded to be part of the set of drone killing speeches Obama’s top officials gave in 2012, and he discusses assassination, which several of the drone authorizations also do, specifically).

Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

Preston would look to a Finding, and we know there was (still is, as far as we know!) a Finding authorizing precisely the thing the government claimed to have done, kill a top al Qaeda figure.

Remember, too, David Kris — who left DOJ not long before this White Paper explicitly authorizing CIA’s execution of the execution got written — issued this warning about the real secrets behind the National Security Act’s language prohibiting CIA from violating US statute.

For example, the covert action statute could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn. The statute defines covert action to exclude “traditional” military and law-enforcement activities, provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,” and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.” Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans. Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. [60; footnotes removed]

In killing Awlaki, CIA was acting in both a law enforcement (that’s where the Fourth Amendment argument derives from) and Traditional Military capacity (which is how these endless justifications apply the public authority to CIA, by claiming CIA officers are just like soldiers). Kris tells us the statute says CIA can’t, but that the NSA “could be interpreted and applied in ways [that] very few Members of Congress, let alone the American People, ever learn.”

It has to have in this case, because CIA acted as both law enforcement and military in violating a slew of statutes to carry out the drone killing of an American citizen as part of a covert op. Kris is basically saying that part of the NSA doesn’t mean what it says. That it means something far more horrible.

Which means he’s also saying — as was Preston — that the drone killing of Anwar al-Awlaki was done on Article II authority.

It is, admittedly, a guess. But I believe that behind that redaction, the White Paper makes it clear this killing was done on Presidential authorization.

Working Thread, Internet Dragnet 5: The Audacious 2010 Reapplication

At some point (perhaps at the end of 2009, but sometime before this application), the government tried to reapply, but withdrew their application. The three letters below were sent in response to that. But they were submitted with the reapplication.

See also Working Thread 1Working Thread 2Working Thread 3, Working Thread 4, and Internet Dragnet Timeline. No one else is doing this tedious work; if you find it useful, please support it.

U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices,

(15/27) In addition to tagging data itself, the source now gets noted in reports.

(16/27) NSA wanted all analysts to be able to query.

(16/27) COntrary to what redaction seemed to indicate elsewhere, only contact chaining will be permitted.

(17/27) This implies that even technical access creates a record, though not about what they access, just when and who did it.

(17/27) NSA asked for the same RAS timelines as in BRFISA — I think this ends up keeping RAS longer than an initial PRTT order.

(18/27) “Virtually every PR/TT record contains some metadata that was authorized for collection, and some metadata that was not authorized for collection … virtually every PR/TT record contains some data that was not authorized by prior orders and some that was not.”

(21/27) No additional training for internal sharing of emails.

(21/27) Proof they argue everything that comes out of a query is relevant to terrorism:

Results of queries of PR/TT-sourced metadata are inherently germane to the analysis of counterterrorism-related foreign intelligence targets. This is because of NSA’s adherence to the RAS standard as a standard prerequisite for querying PR/TT metadata.

(22/27) Note “relevance” creep used to justify sharing everywhere. I really suspect this was built to authorize the SPCMA dragnet as well.

(23/27) Curious language about the 2nd stage marking: I think it’s meant to suggest that there will be no additional protection once it circulates within the NSA.

(24/27) NSA has claimed they changed to the 5 year age-off in December 2009. Given the question about it I wonder if that’s when these letters were sent?

(24/27) Their logic for switching to USSID-18:

these procedures form the very backbone for virtually all of NSA’s dissemination practices. For this reason, NSA believes a weekly dissemination report is no longer necessary.

(24-5/27) The explanation for getting rid of compliance meetings is not really compelling. Also note that they don’t mention ODNI’s involvement here.

(25/27) “effective compliance and oversight are not performed simply through meetings or spot checks.”

(27/27) “See the attached word and pdf documents provided by OIG on an intended audit of PR/TT prior to the last Order expiring as an example.” Guess this means the audit documents are from that shutdown period.

V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices,

W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices.

(2) DNI adopted new serial numbers for reports, so as to be able to recall requests.

(3) THey’re tracking the query reports to see if they can withdraw everything.

(3) THis is another of the places they make it clear they can disseminate law enforcement information without the USSID requirements.

(4) It appears the initial application was longer than the July 2010, given the reference to pages 78-79.

Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes. (around July 2010)

There are some very interesting comparisons with the early 2009 application, document AA.

(1)  Holder applied directly this time rather than a designee (Holder may not have been confirmed yet for the early 2009 one).

(2) The redacted definition of foreign power in AA was longer.

(3) “collect” w/footnote 3 was redacted in AA.

(3) Takes out reference to “email” metadata.

(3) FN 4 both focuses on “Internet communication” rather than “email [redacted]” as AA did, but it also scopes out content in a nifty way.

Continue reading

Working Thread, Internet Dragnet 4: Later 2009 Documents

The early focus on the dragnet violations was on the phone dragnet. At the end of March, however, DOJ started preparing to look more closely at the PRTT program in late April 2009, which may be why some of the following violations got disclosed to Reggie Walton in conjunction with a May reauthorization application. The CIA, FBI, and NCTC access to the PRTT seems to have been a bigger issue than the BR  FISA data.

All that said, when the NSA completed its End-to-End report sometime in fall 2009, they didn’t report all that much beyond the violations noted in May (though they did note the NSA did not shut down some automatic process when it said it did), mostly by claiming they didn’t realize the original dragnet order meant what it said (in spite of the violation in the first dragnet order).

It was only after that that they noticed FISC NSA had been collecting content from the start of the program (see document O). Once they admitted that, NSA decided not to reapply for a Primary Order, and Reggie Walton issued a supplemental order (document E) ordering them not to collect any more, but also not to access the data they did have. Only after that did DOJ submit the End-to-End report, accompanied by DOJ and Keith Alexander reports that admitted the content violation.

See also Working Thread 1, Working Thread 2, Working Thread 3, and Internet Dragnet Timeline. No one else is doing this tedious work; if you find it useful, please support it.

Continue reading

Internet Dragnet Materials, Working Thread 1

I Con the Record just released some ridiculously overclassified Internet dragnet documents it claims shows oversight but which actually shows how they evaded oversight. I’ve added letters to ID each document (I’ll do a post rearranging them into a timeline tomorrow or soon thereafter).

For a timeline I did earlier of the Internet dragnet program see this post.

This will be the first of several working threads, starting with descriptions of what we’ve got.

8/12: Note I will be updating this as I can clarify dates and content.

So-called Judicial oversight

A. FISC Opinion and Order: This is the Kollar-Kotelly order that initially approved the dragnet on July 14, 2004. A searchable version is here.

B. FISC Primary Order: This is an Internet dragnet order signed by Reggie Walton, probably in 2008 or very early 2009. It shows that the Internet dragnet program, which was almost certainly illegal in any case, had less oversight than the phone dragnet program (though at this point also collected fewer records). It was turned over pursuant to FAA requirements on March 13, 2009.

C. FISC Primary Order: This is an Internet dragnet order probably from May 29, 2009 (as identified in document D), signed by Reggie Walton. It shows the beginning of his efforts to work through the Internet violations. It appears to have been provided to Congress on August 31, 2009.

D. FISC Order and Supplemental Order: This is a version of the joint June 22, 2009 order released on several occasions before. It shows Reggie Walton’s efforts to work through the Internet dragnet violations. Here’s one version.

E. FISC Supplemental Order: This appears to be the dragnet order shutting down dragnet production. It would date to fall 2009 (production was likely shut down in October 2009, though this might reflect the initial shut-down).

F. FISC Primary Order: I’m fairly sure this is an order from after Bates turned the Internet dragnet back on in 2010 (and is signed by him), though I will need to verify that. It does require reports on how the NSA will segregate previously violative records, which is consistent with it dating to 2011 sometime (as is the requirement that the data be XML tagged).

G. FISC Memorandum Opinion Granting in Part and Denying in Part Application to Reinitiate, in Expanded Form, Pen Register/Trap and Trace Authorization: This is the order, from sometime between July and October 2010, where John Bates turned back on and expanded the Internet dragnet. Here’s the earlier released version (though I think it is identical).

H. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This was a report Walton required in document C, above, and so would be in the May-June 2009 timeframe. Update: Likely date June 18, 2009.

I. Government’s Response to the FISC’s Supplemental Order: This is the government’s response to an order from Walton, probably in his May 29, 2009 opinion (see this order for background), or even earlier in May.Update: This response dates to June 18, 2009 or slightly before.

J. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration submitted in support of Response I and cited in several places. Update: likely date June 18, 2009.

K. Supplemental Declaration of Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration that led to document C above.

L. Government’s Response to the FISC’s Supplemental Order Requesting a Corrective Declaration: This is a declaration admitting dissemination outside the rules responding to 5/29 order.

M. Government’s Response to a FISC Order: This is the government’s notice that it was using automatic queries on Internet metadata, just as it also was with the phone dragnet. This notice was provided to Congress in March 2009.

N. Declaration of Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Compliance with a FISC Order: After Walton demanded declarations in response to the initial phone dragnet violation, he ordered NSA to tell him whether the Internet dragnet also had the same problems. This is Keith Alexander’s declaration describing the auto scan for that program too. It was provided to Congress in March 2009.

O. Preliminary Notice of Potential Compliance Incident: This is the first notice of the categorical violations that ultimately led to the temporary shutdown of the dragnet, in advance of order E.

P. Notice of Filing: This is notice of a filing in response to inquiry from Judge Walton. It could be from any time during David Kris’ 2009 to early 2011 tenure.

Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the application following Order E, above. I don’t think it’s the 2010 application that led to the reauthorization of the dragnet, because it refers to facilities whereas the 2010 order authorized even broader collection. (Remember Bates’ 2010 order said the government applied, but then withdrew, an application.) Update and correction: this application must post-date December 2009, because that’s when NSA changed retention dates from 4.5 years to 5. Also note reference to change in program and request to access illegally collected data from before 10/09.

R. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the memorandum of law accompanying application Q.

S. Declaration of General Keith B. Alexander, U.S. Army, Director, NSA, in Support of Pen Register/Trap and Trace Application: This is Alexander’s declaration accompanying Q.

T. Exhibit D in Support of Pen Register/Trap and Trace Application: This is a cover letter. I’m not sure whether it references prior communications or new ones.

U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This is the first of several letters in support of reinitiation of the program. The tone has changed dramatically here. For that reason, and because so much of it is redacted, I think this was part of the lead-up to the 2010 reauthorization.

V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This second letter is entirely redacted except for the sucking up to Bates stuff.

W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices: More sucking up. Some language about trying to keep access to the existing illegally collected data. 

X. Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This is the first application for the Internet dragnet, from 2004. Very interesting. Note it wasn’t turned over until July 2009, after Congress was already learning of the new problems with it.

Y. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: The memorandum of law accompanying X. Also turned over to Congress in 2009.

Z. Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application: This goes with the initial application. NSA has left stuff unredacted that suggests they were access less bandwith than they, in the end, were. Also remember NSA violated this from the very beginning.

AA. Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence PurposesThis appears to be the application for the second PRTT order. I’ll return to this tomorrow, but I don’t think it reflects the violation notice it should.

BB. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate: This is NSA’s declaration in conjunction with the first reapplication for the dragnet. This should have declared violations. It was turned over to Congress in March 2009. [update: these appear to be early 2009 application]

CC. Declaration Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Implementation of Authority to Collect Certain Metadata: This is Alexander’s declaration accompanying the End-to-End report, from sometime in fall 2009.

DD: NSA’s Pen Register Trap and Trace FISA Review Report: The end-to-end report itself. it was provided to Congress in January 2010.

EE: DOJ Report to the FISC NSA’s Program to Collect Metadata: DOJ’s accompaniment to the end-to-end report.

FF: Government’s First Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: After Bates raauthorized the Internet dragnet, DOJ realized they might not be on the same page as him. Not sure if this was in the 2009 attempt or the 2010 reauthorization.

GG: Government’s Second Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: A follow-up to FF.

HH: Tab 1 Declaration of NSA Chief, Special Oversight and Processing, Oversight and Compliance, Signals Intelligence: This appears to be the 90-day report referenced in document C. Update: Actually it is referenced in Document A: note the paragraphs describing the chaining that were discontinued before the dragnet approval.

II: Verified Memorandum of Law in Response to FISC Supplemental Order: This is one of the most fascinating documents of all. It’s a 2009-2011 (I think August 17, 2009, though the date stamp is unclear) document pertaining to 3 PRTT targets, relying on criminal PRTT law and a 2006 memo that might be NSA’s RAS memo (though the order itself is FBI, which makes me wonder whether it seeds the FBI program). It may have been what they used to claim that Internet content counted as metadata.

JJ: Memorandum of Law in Response to FISC Order: A September 25, 2006 response to questions from the FISC, apparently regarding whether rules from criminal pen registers apply to PATRIOT PRTT. While I think this addresses the application to Internet, I also think this language may be being used for location.

So-called Congressional oversight

KK: Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: This is a request to unseal an order — I suspect document E — so it could be briefed to Congress.

LL:  Order Granting the Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: Walton’s order to unseal KK for briefing purposes. 

MM: April 27, 2005 Testimony of the Attorney General and Director, FBI Before the Senate Select Committee on Intelligence: This is the 2005 testimony in which — I pointed out before — Alberto Gonzales did not brief Congress about the Internet dragnet.

So-called Internal oversight

NN: NSA IG Memo Announcing its Audit of NSA’s Controls to Comply with the FISA Court’s Order Regarding Pen Register/Trap and Trace Devices: This lays out an audit with PRTT compliance, noting that the audit also pertains to BR FISA (phone dragnet). It admits the audit was shut down when the order was not renewed. It’s unclear whether this was the 2009 or the 2011 shutdown, but the implication is it got shut down because it would not pass audit. 

OO: NSA IG Memo Suspending its Audit of NSA after the NSA’s PRTT Metadata Program Expired: the formal announcement they were shutting down the IG report. Again, it’s not clear whether this was the 2009 or the 2011 shutdown.

If you find this work valuable, please consider donating to support the work.  

David Barron’s ECPA Memo

Last week, I laid out the amazing coinkydink that DOJ provided Sprint a bunch of FISA opinions — including the December 12, 2008 Reggie Walton opinion finding that the phone dragnet did not violate ECPA — on the same day, January 8, 2010, that OLC issued a memo finding that providers could voluntarily turn over phone records in some circumstances without violating ECPA.

Looking more closely at what we know about the opinion, I’m increasingly convinced it was not a coinkydink at all. I suspect that the memo not only addresses FBI’s exigent letter program, but also the non-Section 215 phone dragnet.

As a reminder, we first learned of this memo when, in January 2010, DOJ’s Inspector General issued a report on FBI’s practice of getting phone records from telecom provider employees cohabiting at FBI with little or no legal service. The report was fairly unique in that it was released in 3 versions: the public unclassified but heavily redacted version, a Secret version, and a Top Secret/SCI version. Given how closely parallel the onsite telecom provider program was with the phone dragnet, that always hinted the report may have touched on other issues.

Roughly a year after the IG Report came out, EFF FOIAed the memo (see page 30). Over the course of the FOIA litigation — the DC Circuit rejected their appeal for the memo in January — DOJ provided further detail about the memo.

Here’s how OLC Special Counsel Paul Colborn described the memo (starting at 25):

The document at issue in this case is a January 8, 2010 Memorandum for Valerie Caproni, General Counsel of the Federal Bureau of Investigation (the “FBI”), from David J. Barron, Acting Assistant Attorney General for the Office of Legal Counsel (the “Opinion”). The OLC Opinion was prepared in response to a November 27, 2009 opinion request from the FBI’s General Counsel and a supplemental request from Ms. Caproni dated December 11, 2009. These two requests were made in order to obtain OLC advice that would assist FBI’s evaluation of how it should respond to a draft Report by the Office of Inspector General at the Department of Justice (the “OIG”) in the course of a review by the OIG of the FBI’s use of certain investigatory procedures.In the context of preparing the Opinion, OLC, as is common, also sought and obtained the views of other interested agencies and components of the Department. OIG was aware that the FBI was seeking legal advice on the question from OLC, but it did not submit its views on the question.

The factual information contained in the FBI’s requests to OLC for legal advice concerned certain sensitive techniques used in the context of national security and law enforcement investigations — in particular, significant information about intelligence activities, sources, and methodology.

Later in his declaration, Colborn makes it clear the memo addressed not just FBI, but also other agencies.

The Opinion was requested by the FBI and reflects confidential communications to OLC from the FBI and other agencies. In providing the Opinion, OLC was serving an advisory role as legal counsel to the Executive Branch. In the context of the FBI’s evaluation of its procedures, the general counsel at the FBI sought OLC advice regarding the proper interpretation of the law with respect to information-gathering procedures employed by the FBI and other Executive Branch agencies. Having been requested to provide counsel on the law, OLC stood in a special relationship of trust with the FBI and other affected agencies.

And FBI Record/Information Dissemination Section Chief David Hardy’s declaration revealed that an Other Government Agency relied on the memo too. (starting at 46)

This information was not examined in isolation. Instead, each piece of information contained in the FBI’s letters of November 27, 2009 and December 11, 2009, and OLC’s memorandum of January 8, 2010, was evaluated with careful consideration given to the impact that disclosure of this information will have on other sensitive information contained elsewhere in the United States intelligence community’s files, including the secrecy of that other information.

[snip]

As part of its classification review of the OLC Memorandum, the FBI identified potential equities and interests of other government agencies (“OGAs”) with regard to the OLC memo. … FBI referred the OLC Memo for consultation with those OGAs. One OGA, which has requested non-attribution, affirmatively responded to our consultation and concurs in all of the classification markings.

Perhaps most remarkably, the government’s response to EFF’s appeal even seems to suggest that what we’ve always referred to as the Exigent Letters IG Report is not the Exigent Letters IG Report!

Comparing EFF’s claims (see pages 11-12) with the government’s response to those claims (see pages 17-18), the government appears to deny the following:

  • The Exigent Letters IG Report was the 3rd report in response to reporting requirements of the USA PATRIOT reauthorization
  • FBI responded to a draft of the IG Report by asserting a new legal theory defending the way it had obtained certain phone records in national security investigations, which resulted in the January 8, 2010 memo
  • The report didn’t describe the exception to the statute involved and IG Glenn Fine didn’t recommend referring the memo to Congress
  • In response to a Marisa Taylor FOIA, FBI indicated that USC 2511(2)(f) was the exception relied on by the FBI to say it didn’t need legal process to obtain voluntary disclosure of phone records

Along with these denials, the government reminded that the report “contained significant redactions to protect classified information and other sensitive information.” And with each denial (or non-response to EFF’s characterizations) it “respectfully refer[red] the Court to the January 2010 OIG report itself.”

The Exigent Letters IG Report is not what it seems, apparently.

With all that in mind, consider two more details. First, as David Kris (who was the Assistant Attorney General during this period) made clear in his paper on the phone (and Internet) dragnet, in addition to Section 215, the government obtained phone records from the telecoms under USC 2511(2)(f), the clause in question.

And look at how the chronology maps.

November 5, 2008: OLC releases opinion ruling sneak peak and hot number requests (among other things) impermissible under NSLs

December 12, 2008: Reggie Walton rules that the phone dragnet does not violate ECPA

Throughout 2009: DOJ confesses to multiple violations of Section 215 program, including:

  • An alert function that serves the same purpose as sneak peaks and also violates Section 215 minimization requirements
  • NSA treated Section 215 derived data with same procedures as EO 12333 data; that EO 12333 data included significant US person data
  • One provider’s (which I originally thought was Sprint, then believed was Verizon, but could still be Sprint) production got shut down because it included foreign-to-foreign data (the kind that, according to the OLC, could be obtained under USC 2511(2)(f)

Summer and Fall, 2009: Sprint meets with government to learn how Section 215 can be used to require delivery of “all” customer records

July 9, 2009: Sprint raises legal issues regarding the order it was under; Walton halts production from provider which had included foreign-to-foreign production

October 30, 2009: Still unreleased primary order BR 09-15

November 27, 2009: Valerie Caproni makes first request for opinion

December 11, 2009: Caproni supplements her request for a memo

December 16, 2009: Application and approval of BR 09-19

December 30, 2009: Sprint served with secondary order

January 7, 2010: Motion to unseal records

January 8, 2010: FISC declassifies earlier opinions; DOJ and Sprint jointly move to extend time when Sprint can challenge order; and OLC releases OLC opinion; FISC grants motion (John Bates approves all these motions)

January 11, 2010: DOJ moves (in a motion dated January 8) to amend secondary order to incorporate language on legality; this request is granted the following day (though we don’t get that order)

January 20, 2010: IG Report released, making existence of OLC memo public

This memo is looking less and less like a coinkydink after all, and more and more a legal justification for the provision of foreign-to-foreign records to accompany the Section 215 provision. And while FBI said it wasn’t going to rely on the memo, it’s not clear whether NSA said the same.

Golly. It’d sure be nice if we got to see that memo before David Barron got to be a lifetime appointed judge.

Crimes against Secrecy, Crimes against the Constitution

I’m not all that interested in the debate about offering Edward Snowden some kind of amnesty, as I think he could never accept the terms being offered, it arises in part out of NSA’s PR effort, and distracts from the ongoing revelations.

But I am interested in this. Amy Davidson wrote a column refuting Fred Kaplan’s assertion that because Snowden “signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information,” comparisons with Jimmy Carter’s pardon for draft dodgers are inapt. She notes (as a number of people have already) that the only “oath” that Snowden made was to the Constitution.

To begin with, did Snowden sign “an oath…not to disclose classified information”? He says that he did not, and that does not appear to have been contradicted. Snowden told the Washington Posts Barton Gellman that the document he signed, as what Kaplan calls “a condition of his employment,” was Standard Form 312, a contract in which the signatory says he will “accept” the terms, rather than swearing to them. By signing it, Snowden agreed that he was aware that there were federal laws against disclosing classified information. But the penalties for violating agreement alone are civil: for example, the government can go after any book royalties he might get for publishing secrets.

Snowden did take an oath—the Oath of Office, or appointment affidavit, given to all federal employees:

I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Now, some would argue—and it would have to be an argument, not an elision—that he violated this oath in revealing what he did; Snowden told Gellman that the revelations were how he kept it—protecting the Constitution from the officials at the N.S.A., which was assaulting it. Either way this is just not an oath, on the face of it, about disclosing classified information. [my emphasis]

Former Obama DOD official Phil Carter then attempted to refute Davidson on Twitter. He did so by pointing to the “solemnity” of the forms Snowden did sign, and then noting such “promises are far more legally enforceable than an ‘oath’ of office.”

Screen shot 2014-01-06 at 8.16.52 AM

I don’t dispute Carter’s point that nondisclosure agreements are easier to enforce legally than an oath to the Constitution. And, as noted above, in her original piece Davidson admitted that Snowden had acknowledged there were laws against leaking classified information. No one is arguing Snowden didn’t break any laws (though if our whistleblower laws covered contractors, there’d be a debate about whether that excuses Snowden’s leaks).

Nevertheless, Carter’s comment gets to the crux of the point (and betrays how thoroughly DC insiders have internalized it).

We have an ever-growing side of our government covered by a blanket of secrecy. Much of what that secrecy serves to cover up involves abuse or crime. Much of it involves practices that gut the core precepts of the Constitution (and separation of powers are as much at risk as the Bill of Rights).

Yet we not only have evolved a legal system (by reinforcing the clearance system, expanding the Espionage Act, and gutting most means to challenge Constitutional violations) that treats crimes against secrecy with much greater seriousness than crimes against the Constitution, but DC folks (even lawyers, like Carter) simply point to it as the way things are, not a fundamental threat to our country’s government.

That plight — where our legal system guards this country’s “secrets” more greedily than it guards the Constitution — is the entire point underlying calls for amnesty for Snowden. He has pointed to a system that not only poses a grave threat to the Bill of Rights, but just as surely, to separation of powers and our claim to be a democracy.

Moreover, those who (like Carter) point to our failed branches of government as better arbiters of the Constitution than Snowden ignore many of the details in the public record. Just as one example, David Kris has suggested that the entire reason Colleen Kollar-Kotelly wrote a badly flawed opinion authorizing the Internet dragnet was because George Bush had created a constitutional problem by ignoring Congress’ laws and the courts.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch. [my emphasis]

And while Kris argued Congress’ subsequent approval of the dragnets cures this original sin, the record in fact shows it did so only under flawed conditions of partial knowledge. Of course, these attempts to paper over a constitutional problem only succeed so long as they remain shrouded in secrecy.

That the first response of many is to resort to legalistic attempts to prioritize the underlying secrecy over the Constitution raises questions about what they believe they are protecting. The next torture scandal? Covert ops that might serve the interest of certain autocratic allies but actually make Americans less secure? The financial hemorrhage that is our military industrial complex? The sheer ignorance our bloated intelligence community has about subjects of great importance? Petty turf wars? Past failures of the national security system we’re encouraged to trust implicitly?

At some point, we need to attend to protecting our Constitution again. If Article I and III have gotten so scared of their own impotence (or so compromised) that they can no longer do so, then by all means lets make that clear by revealing more of the problems.

But we need to stop chanting that our Constitution is not a suicide pact and instead insist that our secrecy oaths non-disclosure agreements should not be suicide bombs.

Emptywheel Twitterverse
JimWhiteGNV The oligarchs have forgotten their Dylan: "When you ain't got nothing, you got nothing to lose". Re-learning in Baltimore now.
18mreplyretweetfavorite
JimWhiteGNV RT @pdacosta: Dear @Pontifex: Come to #Baltimore.
24mreplyretweetfavorite
JimWhiteGNV Why don't we hear stats on how many citizens were injured in Baltimore last night? We only hear how many police were injured.
28mreplyretweetfavorite
JimWhiteGNV If you must call those in the streets in Baltimore "animals", I would point out that animals attack only when needing food or in own defense
31mreplyretweetfavorite
emptywheel RT @mattduss: U.S. court tosses Palestinian lawsuit against charities funding settlements http://t.co/Y98kfXteqU
36mreplyretweetfavorite
bmaz RT @stephenlemons: Good stuff from @brahmresnik: Former superior court Judge Gary Donahoe calls Arpaio a "domestic enemy" http://t.co/H8fDz
2hreplyretweetfavorite
bmaz @fedcourts Wow.
2hreplyretweetfavorite
bmaz RT @fedcourts: Reason Senate hasn't confirmed DOJ's acting Civil Rights Chief Vanita Gupta? WH has never formally nominated her. https://t.…
2hreplyretweetfavorite
emptywheel RT @BORDC: Conscientious officials who resigned their careers to serve you agree: #Fight215 & support #SSRA https://t.co/5fflcGkjAH #p2 #tc
5hreplyretweetfavorite
bmaz Agreed RT @bsdtectr Have to give props to Lemon for pushing back.
8hreplyretweetfavorite
bmaz .@MikeForester The Baltimore mayor seemed to have a bit of perspective, but, yes, Gov Hogan seemed like Ross Barnett or early George Wallace
8hreplyretweetfavorite
bmaz RT @MikeForester: @bmaz He borrowed Ross Barnett's playbook
8hreplyretweetfavorite
April 2015
S M T W T F S
« Mar    
 1234
567891011
12131415161718
19202122232425
2627282930