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The Government Admits 9 Defendants Spied On Under Section 702 Have Not Gotten FISA Notice

As I noted, in his opinion approving the Section 702 certifications from last year, Judge Thomas Hogan had a long section describing the 4 different kinds of violations the spooks had committed in the prior year.

One of those pertained to FBI agents not establishing an attorney-client review team for people who had been indicted, as mandated by the FBI’s minimization procedures.

In his section on attorney-client review team violations, Hogan describes violations in all four of the Quarterly Reports submitted since the previous 702 certification process: December 19, 2014, March 20, 2015, June 19, 2015, and September 18, 2015. He also cites three more Preliminary Compliance Reports that appear not to be covered in that September 18, 2015 report: one on September 9, 2015, one on October 5, 2015, and one on October 8, 2015. His further discussion describes the government claiming at a hearing on October 8 to discuss the issue that, thanks to a new system FBI had deployed to address the problem, “additional instances of non-compliance with the review team requirement were discovered by the time of the October 8 Hearing.”

But as Hogan notes in his November 2015 opinion, FBI discovered a lot of these issues because FBI had had a similar problem the previous year and he required them to review for it closely in his 2014 order. A July 30, 2014 letter submitted as part of the recertification process describes two instances in depth: one noticed in February 2014 and reported in the March Quarterly report, and one noticed in April and reported in the June 2014, each involving multiple accounts. A footnote to that discussion admits “there have been additional, subsequent instances of this type of compliance incident.”

Set aside, for the moment, the persistence with which FBI failed to set up review teams to make sure prosecutorial teams were not reading the attorney-client conversations of indicted defendants (who are the only ones who get such protection!!!). Set aside the excuses they gave, such as that they thought this requirement — part of the legally mandatory minimization procedures — didn’t apply for sealed indictments or with targets located outside the United States.

Conservatively, this significantly redacted discussion identifies 9 examples (2 reported in Compliance Reports in 2014, at least 1 reported each in each of four quarterly Compliance report between applications, plus 3 individual compliance reports submitted after the September Compliance report) when people who have been indicted had their communications collected under Section 702, whether they were the target of the 702 directives or not.

And yet, as Patrick Toomey wrote in December, not a single defendant has gotten a Section 702 notice during the period in question.

Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after reports surfaced in the New York Times that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped — and for the last 20 months, crickets.

We know both Mohamed Osman Mohamud — who received a 702 notice personally — and Bakhtiyor Jumaev — who would have secondary 702 standing via Jamshid Muhtorov, with whom he got busted — had their attorney-client communications spied on. But that wasn’t (damn well better not have been!!) 702 spying, because both parties to all those conversations were in the US.

These are 9 different defendants who’ve not yet been told they were being spied on under 702.

Why not?

The answer is probably the one Toomey laid out: that even though members of a prosecutorial team were listening in on attorney-client conversations collected under 702, DOJ made sure nothing from those conversations (or anything else collected via 702) got used in another court filing, and thereby avoided the notice requirement.

Based on what can be gleaned from the public record, it seems likely that defendants are not getting notice because DOJ is interpreting a key term of art in Fourth Amendment law too narrowly — the phrase “derived from.” Under FISA itself, the government is obliged to give notice to a defendant when its evidence is “derived from” Section 702 surveillance of the defendant’s communications. There is good reason to think that DOJ has interpreted this phrase so narrowly that it can almost always get around its own rule, at least in new cases.

It is clear from public reporting and DOJ’s filings in the ACLU’s lawsuit that it has spent years developing a secret body of law interpreting the phrase “derived from.” Indeed, from 2008 to 2013, National Security Division lawyers apparently adopted a definition of “derived” that eliminated notice of Section 702 surveillance altogether. Then, after this policy became public, DOJ came up with something else, which produced a handful of notices in existing cases.

Savage reports in Power Wars that then-Deputy Attorney General James Cole decided that Section 702 information had to have been “material” or “critical” to trigger notice to a defendant. But the book doesn’t provide any details about the legal underpinnings for this rule or, crucially, how Cole’s directive was actually implemented within DOJ. The complete absence of Section 702 notices since April 2014 suggests DOJ may well have found new ways of short-circuiting the notice requirement.

One obvious way DOJ might have done so is by deeming evidence to be “derived from” Section 702 surveillance only when it has expressly relied on Section 702 information in a later court filing — for instance, in a subsequent FISA application or search warrant application. (Perhaps DOJ’s interpretation is slightly more generous than this, but probably not by much.) DOJ could then avoid giving notice to defendants simply by avoiding all references to Section 702 information in those court filings, citing information gleaned from other investigative sources instead — even if the information from those alternative sources would never have been obtained without Section 702.

So these 9 mystery defendants don’t tell us anything new. They just give us a number — 9 — of defendants the government now has officially admitted have been spied on under 702 who have not been told that.

As I noted, Judge Hogan did not include this persistent attorney-client problem among the things he invited Amy Jeffress to review as amicus. Whether or not she would have objected to the persistent violation of FBI’s minimization procedures, a review of them would also have given her evidence from which she might have questioned FBI’s compliance with another part of 702, that defendants get notice.

But DOJ seems pretty determined to flout that requirement going forward.

The Government Continues to Play Hide and Seek with Surveillance Authorities

Last year, I described the effort by the Reaz Qadir Khan’s lawyers to make the government list all the surveillance it had used to catch him (which, significantly, would either be targeted off a dead man or go back to the period during with the government used Stellar Wind). In October the government wrote a letter dodging most notice. Earlier this year, Judge Michael Mosman (who happens to also be a FISA judge) deferred the notice issues until late in the CIPA process. Earlier this month, Khan plead guilty to accessory to material support for terrorism after the fact.

Another defendant accused of material support, Jamshid Muhtorov, replicated that tactic, demanding notice of all the types of surveillance used against him (his co-defendant, Bakhtiyor Jumaev, joined the motion). The government responded to that motion yesterday.

A comparison of the two responses is instructive.

Part of what the government does in both is to rehearse the notice requirements of a particular statute, stating that in this case the evidence hasn’t met those terms. It does so, we can be certain, whether or not the surveillance has been used. That’s because the government addressed FISA Section 703 notice in the Khan case, and we know the government doesn’t use 703 by itself at all.

The responses the government made for both Section 215 request, in which the government said it has no duty to notice Section 215 and a defendant would not have standing nor would have a suppression remedy,

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And PRTT, in which the government listed 5 criteria, all of which must be met to require notice, were virtually identical.

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Which is why I’m interested that the government’s treatment of EO 12333 notice was different (in both cases, there’s good reason to believe EO 12333 surveillance was involved, though in the case of Khan, that would likely include the illegal dragnet).

With Khan, the government remained completely silent about the questions of EO 12333 collection.

Whereas with Muhtorov — who was likely included in the Internet metadata dragnet, but probably not in Stellar Wind — the government argues he would only get notice if Muhtorov could claim evidence used against him in a proceeding was obtained via allegedly illegal electronic surveillance.

Therefore, under circumstances where § 3504 applies, the government would be required to affirm or deny the occurrence of the surveillance only when a defendant makes a colorable claim that evidence is inadmissible because it was “the primary product of” or “obtained by the exploitation of” allegedly unlawful electronic surveillance as to which he is aggrieved.

Then it included a [sealed material redacted] notice.

Which seems tantamount to admission that EO 12333 data was used to identify Muhtorov, but that in some way his prosecution was did not arise from that data as a “primary product.”

Muhtorov was IDed in a chat room alleged to have ties to the Islamic Jihad Union, which I presume though don’t know is hosted overseas. So that may have  been EO 12333 surveillance. But it may be that his communications on it were collected via 702 using the Internet dragnet as an index.

Is the government arguing that using a dragnet the FISC declared to be in violation of FISC orders only as a Dewey Decimal system for other surveillance doesn’t really count?

Another Attorney-Client Conversation Spied On

Last month, I laid out the several attorney client conversations to which Raez Qadir Khan was party that the government wiretapped. Among the 7 privileged conversations wiretapped by the government was a January 2010 conversation he had with his immigration attorney after being told by the FBI he could not travel to see his family.

One of the defendants in a key CO terrorism case just revealed in a filing that he, too, was wiretapped when conversing with his immigration attorney’s office.

Bakhtiyor Jumaev, who through co-defendant Jamshid Muhtorov was the first to get notice his prosecution stemmed from FISA Amendments Act collection, revealed in a filing that a conversation he had with his retained immigration counsel’s paralegal was recorded even after the FBI had first questioned him.

FBI agents interrogated Mr. Jumaev at his Philadelphia apartment on February 14, 2012; at that time, Mr. Jumaev had been charged with an immigration violation, had posted bond that included electronic monitoring, was represented by an immigration attorney, Francois Mazur, Esq., and for approximately two years, unbeknownst to him, had also been under investigation for activities related to this case.15 The next day, February 15, 2012, Mr. Jumaev called Mr. Mazur and spoke with the attorney’s paralegal, seeking legal advice relating to Mr. Jumaev’s having been questioned the day prior by the FBI. A copy of the recording of the call, labeled as S2675971321_20120215194017_416.WAV, has been provided in discovery.16

15 The criminal Complaint filed against Mr. Jumaev notes that the FBI had been investigating him in this matter since shortly after his arrest in February 2010 for immigration charges. See Doc. 1 at ¶ 13.

16 Based upon information and belief, to date, the government has not provided all of Mr. Jumaev’s intercepted communications. It is therefore currently unknown whether other communications between Mr. Jumaev and his immigration attorney were intercepted.

As the footnotes make clear, at this point the FBI had already been investigating him for years, but didn’t have the caution to avoid recording his conversations with his immigration attorney (something which, in the Khan case, the government admitted should have been treated as a privileged conversation).

Call me crazy, but this is beginning to look like a pattern — the FBI wiretapping the earliest privileged conversations after their targets get alerted to the FBI investigation into them.

No Protection for International Communications: Russ Feingold Told Us So

Both the ACLU’s Jameel Jaffer and EFF have reviews of the government’s latest claims about Section 702. In response to challenges by two defendants, Mohamed Osman Mohamud and Jamshid Muhtorov, to the use of 702-collected information, the government claims our international communications have no Fourth Amendment protection.

Here’s how Jaffer summarizes it:

It’s hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.

What’s surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA’s large-scale surveillance of Americans’ international telephone calls and emails:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

That phrase – “if not completely eliminated” – is unusually revealing. Think of it as the Justice Department’s twin to the NSA’s “collect it all”.

[snip]

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

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

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

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

I tracked Feingold’s warnings about Section 702 closely in 2008. That’s where I first figured out the risk of what we now call back door searches, for example. But I thought his comment here was a bit alarmist.

As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.

 

DOJ’s New “Transparency” on the Dragnet: Admitting Their “Physical Search” Was the “Dragnet”

DOJ has been boasting to the press for weeks that it will give Jamshid Muhtorov (though they didn’t name him) notice that they used NSA spook authorities to catch him in his alleged support for Uzbekistan’s Islamic Jihad Union. Now that they have released his name, there are a lot of reasons to be cynical about that: the possibility they’ll try to implicate Human Rights Watch, the possibility they’ll tie him to Najibullah Zazi (like Muhtorov) living in Aurora, CO, the apparent fact that they have no other evidence against him except intercepts.

But here’s what this notice constitutes. Here’s the notice they filed in February 2012.

Comes now the United States of America, by John F. Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Jason Kellhofer and Erin Creegan, Trial Attorneys United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defendant, Jamshid Muhtorov that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829.

And here’s the notice they filed today, in their big bid for transparency.

Comes now the United States of America, by John Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Erin Creegan, Trial Attorney United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. ” 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. ‘ 1881a. Dated this 25th day of October, 2013.

That is, their idea of “transparency” is to notice 50 USC 1881a, which is Section 702 of FAA (wiretapping based off a foreign target), instead of 50 USC 1825(d) which is physical search. (See here and here for just two of the instances where I note they’re calling dragnet searches physical ones.)

That’s it. For years, they’ve been telling defendants they were subjects of a physical search, when in fact they were subjects of a dragnet.

And this is their gleeful new exhibit of transparency.