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More Contractor Problems — And FISC Disclosure Problems?

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In the updated minimization procedures approved in 2011, the NSA added language making clear that the procedures applied to everyone doing analysis for NSA.

For the purposes of these procedures, the terms “National Security Agency” and “NSA personnel” refer to any employees of the National Security Agency/Central Security Service (“NSA/CSS” or “NSA”) and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to section 702 of the Act if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA).

It told the FISA Court it needed this language to make it clear that militarily-deployed NSA personnel also had to abide by them.

The government has added language to Section 1 to make explicit that the procedures apply not only to NSA employees, but also to any other persons engaged in Section 702-related activities that are conducted under the direction, authority or control of the Director of the NSA. NSA Minimization Procedures at 1. According to the government, this new language is intended to clarify that Central Security Service personnel conducting signals intelligence operations authorized by Section 702 are bound by the procedures, even when they are deployed with a military unit and subject to the military chain of command.

But to me both these passages rang alarms about contractors. Did they have to include this language, I wondered, because contractors in the past had claimed not to be bound by the same rules NSA’s direct employees were?

Lo and behold the Bloomberg piece reporting that NSA’s IG undercounts deliberate violations by roughly 299 a year includes this:

The actions, said a second U.S. official briefed on them, were the work of overzealous NSA employees or contractors eager to prevent any encore to the Sept. 11, 2001, terrorist attacks.

It sure seems that at least some of the worst violations — the ones even NSA’s IG will call intentional — were committed by contractors. Which suggests I may be right about the inclusion of that language to make it clear it applies to contractors.

If that’s the case, then why did NSA tell the FISA Court this new language was about militarily-deployed NSA employees, and not about contractors?

 

Did NSA and JSOC Team Up to Game Obama and Monaco on Yemen Terror Alert?

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NBC published a fascinating article yesterday that provided new and interesting details on the events surrounding the escalation of drone strikes in Yemen that took place in response to the “intercepted conference call” that wasn’t a conference call. Matthew Cole, Richard Esposito and Jim Miklaszewski report on the personnel and policy changes that were taking place in the Obama administration as these events unfolded and how these changes had led to a decrease in drone strikes:

Obama announced that he had chosen Lisa Monaco to replace Brennan as his top counterterror official on January 25, and she officially assumed the role of Homeland Security Advisor on March 8. The U.S. launched four strikes on Yemen between January 19 and January 23, just before Obama’s announcement about Monaco, but didn’t launch another until April 17.

“With Brennan going over to CIA and Monaco replacing him, it took time,” said a senior counterterrorism official. “This was a while coming. JSOC (the Pentagon’s Joint Special Operations Command) was pushing for more strikes and more operations but the White House slowed everything down.”

Those three strikes in mid-April were followed by another lull in strikes until mid-May, when there were two strikes just before Obama’s drone policy speech:

In tandem with the drone speech, the President issued new internal guidance to officials that tightened controls on what targets could be hit and who could make the decision to launch a drone.

What followed, sources said, was more frustration from Defense Department officials, and a third, seven-week-long interruption in drone strikes that led to a backlog of identified militant targets in Yemen.

But the “targeting” done by JSOC in Yemen isn’t of the same quality as the information prepared for targeting by the CIA for strikes in Pakistan, according to the NBC report:

In May, around the time of Obama’s speech, senior military officials prepared “targeting packages” for Monaco, with a roster of suspected militants in Yemen that they wanted to eliminate. The “targeting packages” contain background information on the identified targets. The CIA’s packages for Pakistan are often very detailed, while the Defense Department’s research on Yemeni targets was sometimes less detailed.

In fact, the JSOC apparently even admitted that some of these recent targeting packages pertained to lower level targets, but in an apparent use of pre-cogs, they claimed these were going to be important al Qaeda figures in the future and the administration had to deal with the question of “pain now, or pain later” in their recommendation to take out these lower level operatives.

Keep in mind that these meetings to discuss drone targets, also know as “Terror Tuesday” meetings, are populated by high level security personnel from many agencies. Both JSOC, as the target developer for drone strikes in Yemen, and NSA, as the purveyor of information gleaned from surveillance, would of course be present.

As @pmcall noted to me on Twitter, the “intercept” then magically appeared and opened the floodgates for strikes:

Here’s how the NBC article described that: Read more →

As Fraud History Emerges for Bales, US Pushes FISA Court as Ideal for Afghan Night Raid Approval

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The background for Staff Sergeant Robert Bales, the suspect in the mass killing of civilians in Afghanistan last week, became much murkier with the revelation that his career as an investment manager ended in a judgment of $1.4 million against him for fraud. He was accused of “churning” a client’s retirement account, selling off holdings in safer investments to purchase more volatile penny stocks. In the meantime, the fallout from the attack continues, as the US continues its effort to reach a SOFA agreement with Afghanistan ahead of the NATO summit in Chicago scheduled for May. The latest offering appears to be establishment of a system in which Afghan judges would be put into position to approve “warrants” before night raids take place. Deputy National Security Adviser Denis McDonough took to the airwaves on NPR this morning to hold up the US FISA court as the shining example on which the Afghan system should be modeled.

In this morning’s Washington Post, we get quite a few details on the fraud case against Bales. The former client, Gary Liebschner, had employed the firm Bales worked for to manage his retirement account:

That is not the man that Liebschner said he dealt with when Bales was much younger and listed as the “investment executive” on his retirement account. The fund held stock that Liebschner had inherited and earned during his AT&T days, as well as other investments.

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A severe reaction to medication left Liebschner hospitalized and in a rehabilitation center from November 1998 until June 1999. At the time, his wife, Janet, who took time off from her nursing job, was pressed for money to cover car and mortgage payments, as well as the cost of renovations to their home to make it wheelchair-accessible, she said.

She hadn’t previously been in charge of the couple’s finances, she said, but after she began to examine account statements, she realized that the fund had been severely depleted.

Her husband’s retirement account had nearly $700,000 in 1998, his statements show. By early 2000, the fund had about $30,000 in it.

That is an appallingly bad job of investment management, and it is easy to see how a finding of fraud was found against Bales and the firm for which he worked. A big caveat here, though, is whether Janet Liebschner withdrew funds to cover the home renovation and other expenses listed, and if so, how much was withdrawn. We don’t have the exact dates of when the account sat at about $700,000 or when it was found to be depleted, but the period of 1998 through 2000 was fairly robust for investments. Below is a chart of the Dow Jones Industrial Average from the beginning of 1998 through the end of 2000. There was a dip in mid-1998 that gave up the gains from earlier that year, but then from the fall of 1998 through the end of 2000, the market advanced by roughly 33%, from about 7500 to about 10,000: Read more →

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

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