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The Government’s Two Freebie Phone Dragnet Orders

The mood among dragnet reformers has been outright panic about how we need to do something now omigosh we only have 6 weeks.

That’s true, to a point.

But as people scream about the urgency of this, they should consider that the government plans to be operating with the old-style dragnet for up to another 6 months.

For what are surely good logistical reasons (the government has to tell the phone companies how they’ll have to chain on their smart phone users’ data, and Booz will have to set up a giant insecure cloud to conduct the cross-provider chaining), the newfangled chain-on-your-smart-phone dragnet won’t start for 6 months after this bill passes.

(a) IN GENERAL.—The amendments made by sections 101 through 103 shall take effect on the date that is 180 days after the date of the enactment of this Act.

(b) RULE OF CONSTRUCTION.—Nothing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 24 1861 et seq.) as in effect prior to the effective date described in subsection (a) during the period ending on such effective date.

That means the government plans on relying on the old-fashioned suck-it-all-up dragnet for another 6 months.

It also provides a narrow window for the government to rush through new definitions (for example, of session-identifying information that is not a CDR) that won’t be subject to USA F-ReDux’s notice requirements.

Hopefully, the FISC would look askance at that ploy. In the last dragnet order, James Boasberg asked most of the right questions about what the government plans to do to convince me he, at least, doesn’t intend to be snookered in this lame duck period.

But those running around screaming “PANIC!” should recognize that even under the passage of USA F-ReDux, the dragnet will continue another 6 months.

In February, the Government Turned in Its Dragnet Homework Late

Last Wednesday, I Con the Record released the latest dragnet order, signed on February 26.

This order actually has several changes of note.

As I predicted, yet another new FISC judge signed the order, James Boasberg, who only joined the court last May. I suspect they’ve been ensuring that every new approval is approved by a different FISC judge, so they can boast to other courts about how many judges have approved the dragnet.

In what may be related detail, the application for this was late, having been submitted just 3 days before the renewal request was due (and therefore 4 days late). FISC judges have one week terms, so they may have stalled until Boasberg, as a new judge, was presiding.

Whatever the reason, Boasberg scolded DOJ for turning in their homework late, and warned them not to do it again for the next renewal, if there is one.

With two exceptions, neither of which applies here, Rule 9 of this Court’s Rules of Procedure requires the government to submit a proposed application no later than seven days before it seeks to have a matter entertained by the Court. The Court notes that the government filed its proposed application in this matter four days late. If the government seeks to renew the authorities approved herein prior to their expiration on June 1, 2015, the government is directed to file the proposed renewal application no later than Friday, May 22, 2015.

Curiously, Boasberg doesn’t discuss the five-day longer period of collection under this order, he just sets it.

Boasberg also laid out how the government must proceed under each of three scenarios.

First, if any of the 3 Appellate Courts reviewing the dragnet issue an opinion, “the government is directed to inform the Court promptly if the government’s implementation of this Order has changed as a result.”

Equally important, if Congress does pass some kind of new law, it must tell the court about anything the Court hasn’t already considered.

If Congress has enacted legislation amending 50 U.S.C. § 1861 prior to a request for renewed authorities, the government is directed to provide, along with its request, a legal memorandum pursuant to Rule 11(d) of this Court’s Rules of Procedure addressing any issues of law raised by the legislation and not previously considered by the Court.

This last bit is important. Some things — connection rather than contact chaining — would be codified if USA Freedom Act were to pass. But the Court has already considered it; it has been part of dragnet orders for over a year. Some USAF supporters had assumed new definitions in the bill would elicit new opinions that would be treated under the bill’s transparency provisions, but that’s only if the government believes the FISC has never reviewed it. So (for example) we might never know how the FISC has permitted the government to interpret selection term if it deems that the same as selection term it is using.

Finally, in language that might address the possibility Charlie Savage raised in November — that the government would continue doing what it is doing, because the underlying “investigation” remains the same, and therefore no extension is required — if nothing happens, the Court requires a memo of law explaining that.

If Congress, conversely, has not enacted legislation amending § 1861 or extending its sunset date, established by Section 102(b) of Public Law 109-177, 120 Stat. 195, as most recently amended by Section 2(a) of Public Law 112-14, 125 Stat. 216, the government is directed to provide a legal memorandum pursuant to Rule 11(d) addressing the power of the Court to grant such authority beyond June 1, 2015.

Section 102(b) of Public Law 109-177 is the section Savage pointed to that might permit the dragnet to continue.

(2) Exception.–With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.

That basically says the Court is aware of this discussion, either because it reads the NYT or because the government has mentioned it. This order doesn’t tip a hand on how FISC would regard this claim, but it does make clear it considers it a distinct possibility.

Note, unless I’m missing something, no language like this appears in any of the unredacted sections of previous dragnet orders, not even when Congress was giving the government straight renewals. We can’t be sure, but that certainly seems to suggest the Court has been having conversations — either by itself or with the government — about alternatives in a way Bob Litt and others are not having publicly.

Which brings me back to the government’s late homework again. There are other possibilities to explain the delayed submission. For example, it’s possible they delayed to make the extension of the 90-day period less odd (though I’m not sure why). It’s possible they honestly considered not renewing the order, already putting into place whatever they’re going to unilaterally do once Congress does nothing. Or perhaps they were still debating how to proceed with the Court.

When I used to turn in homework late (okay — it probably only happened once), I had to have a good excuse. What was the government’s?

There’s one more tiny change of note. This order moves its definition for connection chaining to footnote 7 (and the order consolidated some other footnotes). That’s likely just cosmetic, unless the FISC had some concern that the government was using a flexible definition of “connection chaining” for its emergency approvals.

Peter Bergen’s Bumper Sticker

Yesterday, just two days after the unofficial start of the General Election, Joe Biden officially rolled out the slogan he had already warned would be his refrain for the entire campaign season:

If you’re looking for a bumper sticker to sum up how President Obama has handled what we inherited, it’s pretty simple: Osama bin Laden is dead and General Motors is alive.

Also yesterday, Time Magazine rolled out a Peter Bergen article, The Last Days of Osama Bin Laden (which is still behind the paywall), accompanied not just by a bunch of other piggy-backed articles, but the letter above, Leon Panetta’s record of National Security Advisor Tom Donilon’s call telling him the operation against OBL was a go.

I guess we’re supposed to assume the timing of the two events is entirely coincidental.

The other event that transpired yesterday–Judge James Boasberg’s order ruling the CIA had properly withheld 52 photos taken during the raid on OBL’s compound under FOIA exemption 1 (properly classified information)–probably was just a coincidence.

But it does remind us that the photos–that is, records of the same covert operation as Leon Panetta’s note recorded–were immediately stamped “Top Secret,” considered derivatively classified, and subsequently formally classified and withheld from FOIA.

And yet, here Panetta’s note is, somehow having evaded the classification stamps. That, in spite of the fact that it records the normally religiously guarded Presidential communications, not to mention details of how CIA and JSOC work together on covert ops, the time it was officially okayed, that McRaven was informed first even though CIA was ostensibly in charge of the op. All of it stuff that, had the op blown up in Obama’s face, would be as carefully guarded as those pictures of OBL’s funeral.

In my mind, this whole festival of information asymmetry targeted at voters is capped off by the byline involved: Peter Bergen.

When I read about the imprisonment of journalists like Abdulelah Haider Shaye, or the wiretapping of Lawrence Wright and Christiane Amanpour, I think back to Bergen, who in the days after 9/11 was an important, reliable source who knew more about al Qaeda than many of the people taxpayers were paying to keep us safe. I’ve always thought, as our government targets journalists covering Islamic extremists, we’re handcuffing the next Peter Bergen, that journalist who is right now collecting the information our intelligence community is neglecting.That Peter Bergen is likely to be imprisoned, like Shaye, for talking directly to a terrorist.

And what has Bergen become, along the way? The outlet for officially leaked information–one more tool in the President’s toolbox of information asymmetry.

I don’t blame the Obama Administration for running on Joe Biden’s pithy slogan. But I do blame it for corrupting information in this way, both the system of classification that should be free from politics, and the space it accorded journalists to do their job when the government wasn’t.

Update: See this for details of how Brian Williams will film Obama and friends re-enacting last year’s Sit Room drama as they killed OBL.

Update: One of the things Judicial Watch complained about in their OBL suit is that the photos were probably classified only after the government received their FOIA on May 2 (to DOD) and May 4 (to CIA). CIA Information Review Officer Elizabeth Anne Culver explained that the CIA always considered the photos classified.

Contrary to Plaintiff’s suggestion, after their creation these extraordinarily sensitive images were always considered to be classified by the CIA and were consistently maintained in a manner appropriate for their classification level.

So wouldn’t Panetta’s note be considered derivatively classified, just like the photos? If so, why doesn’t have declassification markings now?