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Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

If Ending DOD’s Train and Assist Program Is about Returning to Covert Status, Will Congress Get Details?

When Mike Lee, Joe Manchin, Chris Murphy, and Tom Udall wrote the Administration calling for an end to the Syria Train and Equip Program last week, they addressed it to CIA Director John Brennan, along with Defense Secretary Ash Carter (its primary addressee, given the clear reference to details about DOD’s T&E mission) and Secretary of State John Kerry.

It appears the Senators got the result they desired. As a number of outlets are reporting, Carter has decided to end DOD’s T&E program, which has done little except arm al Qaeda affiliates in Syria. But it’s not that we’re going to end our involvement in Syria. The stories provide different descriptions of what we intend to continue doing. The NYT, which pretended not to know about the CIA covert program, described a shift of training to Turkey, while discussing armed Sunnis in eastern Syria.

A senior Defense Department official, who was not authorized to speak publicly and who spoke on the condition of anonymity, said that there would no longer be any more recruiting of so-called moderate Syrian rebels to go through training programs in Jordan, Qatar, Saudi Arabia or the United Arab Emirates. Instead, a much smaller training center would be set up in Turkey, where a small group of “enablers” — mostly leaders of opposition groups — would be taught operational maneuvers like how to call in airstrikes.

[snip]

The official said the training was “to be suspended, with the option to restart if conditions dictate, opportunities arise.” The official also said that support to Sunni Arab fighters in eastern Syria was an example of focusing on groups already fighting the Islamic State, also known as ISIS or ISIL, “rather than using training to try to manufacture new brigades.”

The LAT to its credit did acknowledge the parallel CIA program in a piece vaguely describing our “new” approach of working with a wide range of groups on the Turkish border.

Under the new approach, the administration will continue to work with a range of groups to capitalize on the successes that Kurdish, Arab and Turkmen groups have had over the last several months driving the Islamic State forces out of much of the Turkey-Syria border region.‎

[snip]

The decision to end the Pentagon training program does not appear to immediately affect a separate program run by the CIA.

While Ash Carter’s public remarks associated with this discussion make it clear Russia’s actions in the same region remain a concern, the reporting I’ve seen thus far hasn’t tied the decision to end the DOD program to the need to respond to Russia in any way.

Which raises the question: is this just an attempt to shift our existing T&E efforts entirely under a covert structure again? There are many reasons why you’d want to do that, not least because it would make it a lot easier to hide that not only aren’t your “rebels” “moderate,” but they’re al Qaeda affiliates (as David Petraeus and others were floating we should do). Given Qatari and Saudi efforts to flood more weapons into Syria in response to Russia’s involvement, you’d think the US would want to play along too.

But especially since Tom Udall is the guy who — a year ago — raised the crazy notion that Congress should know some details about the (at that point) two year long effort by CIA to support “moderate” forces …

Everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years. And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?

… I wonder whether Congress has ever gotten fully briefed on that program — and whether they would going forward.

After all, none of the men who signed this letter would be privy to how a covert effort to train rebels was going under normal guidelines unless Udall or Murphy were getting details on the Appropriations Committee.

So while it may be — and I think it likely this is — just an effort to make it easier to partner with al Qaeda to defeat Bashar al-Assad and Putin (teaming with al Qaeda to fight Russia! just like old times!) — I also wonder whether this is an effort to avoid telling most of Congress just how problematic (even if effective from an anti-Assad perspective) both the DOD and CIA effort are.

 

SASC Hearing: Dunford Advocates for Forever War in Afghanistan

I was only able to monitor portions of yesterday’s Senate Armed Services Committee hearing in which Joseph Dunford provided an update on the situation in Afghanistan. Most of the hearing was the usual frustrating bunk, such as Roger Wicker whinging that we just don’t hear enough in the media about US successes in Afghanistan. John McCain actually was a bit more responsible than usual, showing a lot of doubt about the current set of plans and complaining that the small reserve force anticipated after 2014 is just not worth the risk to the troops if a BSA is eventually signed. Dunford’s opening statement as submitted can be found here (pdf) and the video of the entire hearing is here. What stood out at the hearing for me, though, was the entire exchange between Joe Manchin and Dunford. Here is the clip of that exchange:

In the middle of the exchange, Manchin brings up the issue of the “excess” Mine Resistant Ambush Protected Vehicles, or MRAP’s. This has been an issue I’ve followed closely, especially when I found that the US ordered nearly a billion dollars’ worth next generation vehicles while declaring a large number of usable vehicles unneeded.  Several months after writing that post, I happened to overhear a conversation on an airplane in which a person claimed to have just come from Kabul, where they witnessed brand new MRAP’s coming off planes being delivered, driving across the tarmac and then being cut up for scrap. I made a few inquiries on whether this was indeed occurring (the explanation from the person on the airplane was that the purchase contracts could not be rescinded and that delivery to Kabul was a part of the contract), so the bit where Manchin and Dunford discuss them perked up my ears. Note that Dunford claims he’s saving money by scrapping them, since it costs only $10,000 to cut one up but $50,000 to ship it home. Manchin rightfully then points out that building the replacement costs a million dollars if a new MRAP is needed. Dunford then offers that sufficient MRAP’s have been moved back to the US to cover any projected needs for the next conflict that breaks out. Significantly, he states that he has discontinued the practice of cutting them up for scrap. This is the first I’ve heard about discontinuing the practice and I have to wonder if DoD was beginning to feel pressure due to word getting out about scrapping such expensive equipment. The “donation” plan is doomed from the start, since any recipients have to arrange and pay for shipment. This might not be entirely bad, though, as it may prevent a rash of these ridiculous beasts showing up in the fleets of local law enforcement agencies.

The final bit of the exchange, though, is the most telling. In their coverage of the hearing, both the New York Times and Washington Post picked up “quotables” from Manchin in the lead-up to the final exchange, but stopped short of what I see as Dunford first denying and then going all in on the concept of a forever war in Afghanistan.

My transcript of the final exchange, after Dunford had claimed there would be a time when the US would leave:

Manchin: And I’m saying if thirteen years didn’t do the job, how many more years do you think it’ll take? That’s the question I cannot answer. You know, we’re just basically saying if you can’t do the job in ten, twelve, thriteen years, you’re just not going to get the job done.

Dunford: Well, Senator, I would assume because we have vital national interests in the region, that the United States would be engaged in the region for a long period of time to come. The nature of our engagement and the nature of our presence would of course change over time.

Manchin: Again, thank you so much for your service and I would just respectfully disagree.

So although Dunford first told Manchin that there would be a time when the US could leave Afghanistan (in contrast to Manchin’s example of South Korea), Dunford then failed to put any endpoint on what would be “a long period of time to come” when the US would have such a vital interest in Afghanistan that we need to keep troops there. I’m with Manchin on disagreeing, but I can’t get to the respectful part.

Breaking: Four Senators Rediscover Congress Has Oversight Role for Committing Troops

Don’t look for this important bit of news in the New York Times or Washington Post. At least at the time I started writing this, they hadn’t noticed that Senators Jeff Merkley, (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) put out a press release yesterday calling for a Congressional vote on whether to authorize keeping US troops in Afghanistan beyond 2014. President Barack Obama and the Pentagon have been bargaining with Afghan President Hamid Karzai for over a year now to get a Bilateral Security Agreement that will authorize keeping US troops there after the current NATO mission officially ends at the end of this year, but we have heard almost nothing at all from Congress. Well, we did have some hypocrisy tourists calling for Karzai to sign the agreement immediately or suffer the financial consequences, but they didn’t call for using their Constitutional role in authorizing use of troops.

This bipartisan group had some pretty strong language about the push to exclude Congress from the decision-making on keeping troops in Afghanistan:

Today, Senators Jeff Merkley (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) announced the introduction of a bipartisan resolution calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014. The Administration is reportedly negotiating an agreement that could keep 10,000 American troops or more in Afghanistan for another ten years.

“The American people should weigh in and Congress should vote before we decide to commit massive resources and thousands of troops to another decade in Afghanistan,” Merkley said. “After over 12 years of war, the public deserves a say. Congress owes it to the men and women in uniform to engage in vigorous oversight on decisions of war and peace.”

“After over a decade of war, Congress, and more importantly the American people, must be afforded a voice in this debate,” Lee said. “The decision to continue to sacrifice our blood and treasure in this conflict should not be made by the White House and Pentagon alone.

“After 13 years, more than 2,300 American lives lost and more than $600 billion, it is time to bring our brave warriors home to the hero’s welcome they deserve and begin rebuilding America, not Afghanistan,” Manchin said. “We do not have an ally in President Karzai and his corrupt regime. His statements and actions have proven that again and again. Most West Virginians believe like I do money or military might won’t make a difference in Afghanistan. It’s time to bring our troops home.”

“The power to declare war resides in the hands of Congress,” Paul said. “If this President  or any future President has the desire to continue to deploy U.S. troops to this region, it should be done so only with the support of Congress and the citizens of the United States.”

After 12 years and hundreds of billions of dollars spent, the Administration has declared that the war in Afghanistan will be wound down by December 31, 2014. However, the Administration is also negotiating an agreement with the Government of Afghanistan that would set guidelines for U.S. troops to remain in training, support, and counter-terrorism roles through at least 2024.

In November, the Senators introduced this bill as an amendment to the Defense Authorization bill, but it wasn’t allowed a vote. In June, the House of Representatives approved a similar amendment to the NDAA stating that it is the Sense of Congress that if the President determines that it is necessary to maintain U.S. troops in Afghanistan after 2014, any such presence and missions should be authorized by Congress.  The House amendment passed by a robust, bipartisan 305-121 margin.

But Merkley added yet another zinger. From the AFP story on the move, as carried in Dawn (emphasis added):

“We are introducing a bipartisan resolution to say before any American soldier, sailor, airman or Marine is committed to stay in Afghanistan after 2014, Congress should vote,” Democratic Senator Jeff Merkley told reporters.

Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war.

Wow. What a concept. Read more

Lisa Murkowski Admits She Voted To Help Catholic Church Enforce a Doctrine She Ignores

As I noted last week, every single Catholic Senator save Susan Collins who voted for the Blunt Amendment last week appears likely to have relied on the birth control their Church prohibits to limit the size of their families. Lisa Murkowski, who has just 2 kids, was among the 10 Catholics who was using her position to help the Catholic Church enforce a doctrine she herself has ignored.

And in an interview claiming she now regrets that vote, Murkowski as much as admits that’s what she did. (h/t TPM)

What Lisa Murkowski told me I already suspected. She’s a moderate. She supports abortion rights and contraception coverage. She also doesn’t line up completely with the Catholic Church when it comes to birth control. She regretted her recent vote.

[snip]

I pointed out that her support for birth control conflicts with the Catholic mandate against it.

“You know, I don’t adhere to all of the tenets of my faith.

Now, she’s still spinning her vote (and her letter opposing Obama’s rule on contraception) as one in favor of religious freedom.

She’d meant to make a statement about religious freedom, she said, but voters read it as a vote against contraception coverage for women.

But it is not “religious freedom” to craft laws to help the Church enforce mandates that almost none of its adherents–and probably few, if any, of the Catholic Senators supporting the law–abide by. It is an improper use of government to aid a religious institution.

Not to mention, rank hypocrisy.