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Will Senators Filibuster Chuck Hagel’s Nomination to Get the Targeted Killing Memo?

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Eleven Senators just sent President Obama a letter asking nicely, for at least the 12th time, the targeted killing memo. They remind him of his promise of transparency and oversight.

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions. 

And asks — yet again — for “any and all memos.”

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.

But perhaps the most important part of this letter is that it refers not just to John Brennan’s nomination, but to “senior national security positions.”

As the Senate considers a number of nominees for senior national security positions, we ask that you ensure that Congress is provided with the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.

There are just 11 Senators on this list:

  • Ron Wyden (D-Ore.)
  • Mike Lee (R-Utah)
  • Mark Udall (D-Colo.)
  • Chuck Grassley (R-Iowa)
  • Jeff Merkley (D-Ore.)
  • Susan Collins (R-Maine)
  • Dick Durbin (Ill.)
  • Patrick Leahy (D-Vt.)
  • Tom Udall (D-N.M.)
  • Mark Begich (D-Alaska)
  • Al Franken (D- Minn.)

And just three of these — Wyden, Mark Udall, and Collins — are on the Intelligence Committee. That’s not enough to block Brennan’s confirmation.

But it may be enough to block Hagel’s confirmation, given all the other Republicans who are opposing him.

DOJ: We Can’t Tell Which Secret Application of Section 215 Prevents Us From Telling You How You’re Surveilled

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As Mike Scarcella reported yesterday, the government has moved for summary judgment in an Electronic Privacy Information Center FOIA suit for details on the government’s investigation into WikiLeaks. EPIC first FOIAed these materials in June 2011. After receiving nothing, they sued last January.

The government’s motion and associated declarations would be worth close analysis in any case. All the more so, though, in light of the possibility that the government conducted a fishing expedition into WikiLeaks as part of its Aaron Swartz investigation, almost certainly using PATRIOT Act investigative techniques. The government’s documents strongly suggest they’re collecting intelligence on Americans, all justified and hidden by their never ending quest to find some excuse to throw Julian Assange in jail.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

At a general level, the government has exempted what files it has under a 7(A) (ongoing investigation) exemption, while also invoking 1 (classified information), 3 (protected by statute), 5 (privileged document), 6 (privacy), 7(C) (investigative privacy), 7(D) (confidential source, which can include private companies like Visa and Google), 7(E) (investigative techniques), and 7(F) (endanger life or property of someone) exemptions.

No one will say what secret law they’re using to surveil Americans

But I’m most interested in how all three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham — claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

By investigating a publisher as a spy, DOJ gets access to PATRIOT Act powers, including Section 215

There’s a very very large chance that the statute in question is Section 215 of the PATRIOT Act (or some other national security administrative subpoena). After all, the FOIA asked whether DOJ had collected business records on WikiLeaks supporters, so it is not unreasonable to assume that DOJ used the business records provision to do so.

Moreover, the submissions make it very clear that the investigation would have the national security nexus to do so. While the motion itself just cites a Hillary Clinton comment to justify its invocation of national security, both the FBI and the NSD declarations make it clear this is being conducted as an Espionage investigation by DOJ counterintelligence people, which — as I’ve been repeating for over two years — gets you the full PATRIOT Act toolbox of investigative approaches.

Media outlets take note: The government is, in fact, investigating a publisher as a spy. You could be next.

Read more →

Maybe John Brennan Didn’t Want to Talk about CIA Lying to Congress?

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Mark Udall just released word that John Brennan failed to connect the dots do his homework before meeting with Udall about his CIA confirmation.

Mark Udall, a member of the Senate Select Committee on Intelligence, said he is “deeply disappointed” that CIA nominee John Brennan was unprepared to discuss the Intelligence Committee’s recent report on the CIA’s Detention and Interrogation Program. Udall and Senators Carl Levin (D-Mich.) and Ron Wyden (R-Ore.) met with Brennan today after asking him to review the committee’s findings, which were based on a documentary review of more than 6 million pages of CIA and other records, and raises critical questions about intelligence operations and oversight.

“I was deeply disappointed today during my meeting with John Brennan. A few weeks ago, I had asked that he be prepared to discuss at today’s meeting the findings of the Senate Intelligence Committee’s comprehensive study on the CIA’s Detention and Interrogation program. Not only was he not prepared to discuss the important findings, but he hadn’t reviewed the report at all,” Udall said. “Brennan promised today to review the findings before the Intelligence Committee’s confirmation hearing next Thursday. I intend to hold him to that promise, and I hope Mr. Brennan will be more forthcoming in his testimony next week. I understand that he may not see it in his or the CIA’s interests to criticize the very agency that he hopes to lead, but I see this as an opportunity for Mr. Brennan to correct the record, institute the necessary reforms and help restore the CIA’s reputation for integrity and analytical rigor.” [my emphasis]

Take a close look at the bolded language in Udall’s statement.

Udall’s meeting with Brennan was also attended by Carl Levin and Ron Wyden.

We know that Ron Wyden has two significant concerns about the torture report.

I am particularly interested in getting your reaction to the report’s revelation that the CIA repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department, and Congress, and your view on what steps should be taken to correct inaccurate statements that were made to the public.

The CIA has made inaccurate statements to the public–something that seems to be echoed in Udall’s interest in Brennan “correct[ing] the record.”

And that CIA provided inaccurate information lied about the torture program to the White House, the Justice Department, and Congress. Udall’s suggestion that Brennan might not want to criticize the agency, his suggestion that CIA needs to restore its integrity, and his mention of oversight (which, after all, is impossible if CIA insists on lying) all seem to parallel Wyden’s concerns about CIA’s lies to everyone who was supposed to be overseeing it.

So maybe it’s just that Brennan failed to do his homework.

Or maybe it’s that Brennan, a serial liar, intends to dodge all questions about CIA’s own lying to its overseers.

Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

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Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

Read more →

Ron Wyden: Liar, Liar, Alexander Pants on Fire

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Ron Wyden, Dianne Feinstein, and a few other Senators are conducting what constitutes “a debate” on the FISA Amendments Act extension.

The highlight of the debate, thus far, came when DiFi promised to wave a classified letter answering some of Ron Wyden’s questions around in front of the TV. Mind you, she has not yet fulfilled that promise. But she made the promise, so I am glued to the screen waiting for her to embody the ridiculous nature of this so-called debate by waving her letter in lieu of telling us what it actually says.

Aside from that excitement, however, the high point of the debate has come from Ron Wyden, repeatedly suggesting NSA head General Keith Alexander is a liar.

At issue was a speech Alexander made in July at the DefCon hackers conference. He made two claims that Wyden and Mark Udall questioned in an October letter.

Specifically, you said:

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrayed privacy protections for Americans’ communications as being stronger than they actually are. We urge you to correct this statement, so that Congress and the public can have a debate over the renewal of this law that is informed by at least some accurate information about the impact it has had on Americans’ privacy.

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false.” We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark. Specifically we ask that you please answer the following questions:

  • The intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the FISA Amendments Act, and has even declined to estimate the scale of this collection. Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, or at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?
  • Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

Alexander replied to Wyden and Udall on November 13. In it, he responded to the first Wyden/Udall question by claiming he was speaking about a foreign intelligence context.

I noted at the outset that NSA has a foreign intelligence mission, and my subsequent reference focused on the type of circumstance in which U.S. person information may be disseminated when this foreign intelligence requirement is not met (e.g., when there is evidence of a crime).

He went on to rehearse the legal requirements for minimization, which only applies to information not deemed “foreign intelligence information.” That is, he basically admitted that information deemed to be foreign intelligence information can be shared.

Alexander answered the second Wyden/Udall question by dodging.

Second, my response did not refer to or address whether it is possible to identify the number of U.S. person communications that may be lawfully but incidentally intercepted pursuant to foreign intelligence collection directed against non-U.S. persons located outside the United States as authorized under FAA 702.

In your letter, you asked for unclassified answers to several questions that you feel are important to allow the public to better understand my remarks delivered at the conference. While I appreciate your desire to have responses to these questions on the public record, they directly relate to operational activities and complete answers would necessarily include classified information essential to our ability to collect foreign intelligence.

Wyden referred to these letters at least twice in his various speeches in this “debate.” And while he has been careful to suggest that Alexander may have just misspoke, he has repeatedly made it clear that Alexander lied when he said US person data could not be shared.

I don’t know why General Alexander described minimization as he did. But why did it take Udall and I to make big push to correct?

The implication, it seems, is that the government has simply deemed all the US person information they collect to be foreign intelligence (indeed, elsewhere Jeff Merkley talked about how the “relevant to an investigation” standard makes all conceivable information context for foreign intelligence), meaning minimization requirements are largely meaningless.

In response to Alexander’s claims on hundreds of millions of dossiers, Wyden noted, over and over again, that in spite of NSA’s refusal to answer the question of how many Americans’ data has been collected, Alexander did not in his response–and has not since–denied that NSA keeps hundreds of millions of dossiers on people.

Director of NSA would not provide public answer on whether NSA keeps hundreds of millions of dossiers on people.

Clearly, Alexanders denial that NSA keeps dossiers (which itself stems from claims former NSA coder William Binney made) is simply a word game about the meaning of dossier. NSA doesn’t have dossiers, you see. It has information on hundreds of millions of Americans.

Information–that Wyden makes clear–is not subject to the plain meaning of minimization requirements.

FAA Extension: The Data Gaps about Our Data Collection

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As I noted the other day, part of the point of the language Ron Wyden got declassified the other day seemed to be to call out a misrepresentation in Dianne Feinstein’s Additional Views in the Senate Intelligence Report on the extension of the FISA Amendments Act. DiFi had claimed that “the FISA Court … has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.” She neglected to mention that, “on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.”

But since Wyden pointed back to that language, I wanted to note something else in the paragraph in which DiFi’s misleading claim appears: She suggests there is substantial reporting on the program.

This oversight has included the receipt and examination of over eight assessments and reviews per year concerning the implementation of FAA surveillance authorities, which by law are required to be prepared by the Attorney General, the Director of National Intelligence, the heads of various elements of the intelligence community, and the Inspectors General associated with those elements. In addition, the Committee has received and scrutinized un- redacted copies of every classified opinion of the Foreign Intelligence Surveillance Court (FISA Court) containing a significant construction or interpretation of the law, as well as the pleadings submitted by the Executive Branch to the FISA Court relating to such opinions.

[snip]

Third, the numerous reporting requirements outlined above provide the Committee with extensive visibility into the application of these minimization procedures and enable the Committee to evaluate the extent to which these procedures are effective in protecting the privacy and civil liberties of U.S. persons. [my emphasis]

But in her sentence claiming the FISA Court keeps approving the program, she reveals that the Court is not getting all those reports.

Notably, the FISA Court, which receives many of the same reports available to the Committee, has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.

[my emphasis]

The Court receives “many” of the same reports. Which suggests it doesn’t see all of them.

That comment is all the more interesting because of something Pat Leahy said at least week’s Senate Judiciary Committee mark-up of the bill.

Congress has been provided with information related to the implementation of the FISA Amendments Act, along with related documents from the FISA Court. Based on my review of this information, and after a series of classified briefings, I do not believe that there is any evidence that the law has been abused, or that the communications of U.S. persons are being intentionally targeted.

[snip]

My views about the implementation of these surveillance authorities are based on the information we have available now – but there is more that we need to know. For example, important compliance reviews have not yet been completed by the Inspectors General of the Department of Justice or the NSA. Read more →

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

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In the Senate Judiciary Committee’s markup of the FISA Amendments Act, Mike Lee, Dick Durbin, and Chris Chris Coons just tried, unsuccessfully, to require the government to get a warrant before it searched US person communications collected via the targeting of non-US person under the FISA Amendments Act. It was, as Dianne Feinstein said, not dissimilar from an amendment Ron Wyden and Mark Udall had tried to pass when FAA was marked up before the Senate Intelligence Committee.

The debate revealed new confirmation that the government is wiretapping American citizens in the guise of foreign surveillance.

DiFi argued that the amendment would have impeded the government to pursue Nidal Hassan by delaying the time when they could have reviewed his communication (presumably with Anwar al-Awlaki). Of course, the amendment included an emergency provision that would have permitted such a search after the effect.

More telling, though, was Whitehouse’s response. He referred back to his time using warrants as a US Attorney, and said that requiring a warrant to access the US person communication would “kill this program,” and that to think warrants “fundamentally misapprehends the way in which this program operates.”

Now, I’d be more sympathetic to Whitehouse here if, back when this bill was originally argued, his amendments requiring FISC oversight of minimization after the fact had passed. They didn’t. To make things worse, though Leahy repeatedly talked about Inspector General reporting overdue on this program, Congress is not going to wait for these reports before they extend the program for another three years, at least. So Whitehouse’s assurances that we can trust minimization to protect US person privacy seems badly misplaced.

In any case, this represents an admission, as strong as any we’ve seen, that this program is entirely about collecting the US person communication of those who communicate with people (DiFi used the term “person of interest,” which I had not heard before) overseas.

Update: Updated to explain this came in a markup hearing. Thanks to Peterr for pointing out my oversight on that point.

The Only Independent Reviewer of Targeting and Minimization Refuses to Review It

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On May 4, Senate Intelligence Committee members Ron Wyden and Mark Udall asked the Intelligence Community Inspector General to determine whether it was feasible to determine how many US persons have been spied on under the FISA Amendments Act.

The Temporally Perfect Fuck You

On May 22, the Committee marked up the renewal of the Act. During consideration of the bill, the Committee rejected Wyden and Udall’s efforts to require the IGs quantify such numbers based on their pending request to the IGs.

During the Committee’s consideration of this legislation, several Senators expressed a desire to quantify the extent of incidental collection under Section 702. I share this desire. However, the Committee has been repeatedly advised by the ODNI that due to the nature of the collection and the limits of the technology involved, it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under Section 702 authority. Senators Ron Wyden and Mark Udall have requested a review by the Inspector General of the NSA and the Inspector General of the Intelligence Community to determine whether it is feasible to estimate this number. The Inspectors General are conducting that review now, thus making an amendment on this subject unnecessary. SSCI report on the bill reminds that the IC IGs are authorized–but not required too–conduct reviews of Section 702.

Note, elsewhere the bill report includes these authorized but not mandatory reviews as part of the “robust oversight” of this spying program.

In addition, the Inspectors General of the Department of Justice and certain elements of the Intelligence Community are authorized to review the implementation of Section 702 and must provide copies of any such reviews to the Attorney General, DNI, and congressional committees of jurisdiction.

Yet in rejecting the motion to actually mandate a review, Dianne Feinstein’s report emphasizes that this authority is optional.

Also while marking up the bill, Wyden and Udall attempted to direct the Committee’s Technical Advisory Group to review what was really going on with the FAA. That motion was ruled out of order (Kent Conrad joined Wyden and Udall on this one vote–otherwise the committee voted against all their efforts for greater oversight).

We also proposed directing the committee’s Technical Advisory Group to study FISA Amendments Act collection and provide recommendations for improvements. We were disappointed that our motion to request that the Technical Advisory Group study this issue was ruled by our colleagues to be out of order.

As a result, the bill was voted out of committee on May 22 without any requirement that the intelligence community report on how many US persons it is spying on with FAA.

On June 15, the IC IGs finally got back to Wyden and Udall. (h/t Wired) Note the dates cited in the response.

On 21 May 2012, I informed you that the NSA Inspector General, George Ellard, would be taking the lead on the requested feasibility assessment, as his office could provide an expedited response to this important inquiry.

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

As I stated in my confirmation hearing and as we have specifically discussed, I firmly believe that oversight of intelligence collection is a proper function of an Inspector General. I will continue to work with you and the Committee to identify ways that we can enhance our ability to conduct effective oversight. [my emphasis]

So IC IG Charles McCullough waited 17 days to even tell Wyden what he was going to do with the request, at which point–the eve of the bill markup–he told Wyden that Ellard would prospectively conduct the inquiry. So when the Committee decided not to mandate an IG review based on the “pending” review, it had not started yet. Read more →

Time to End the War in Iraq

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The War Powers Resolution 6-Month Report has gotten unusual attention because it officially announces we’re at war in Yemen and Somalia (though I suspect the Administration has only finally officially announced we’re at war against al Qaeda in Yemen precisely because we’re not, just).

While everyone’s looking, let’s look more closely at this bit:

MILITARY OPERATIONS IN IRAQ

The United States completed its responsible withdrawal of U.S. forces from Iraq in December 2011, in accordance with the 2008 Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq.

Jeebus pete. Can’t we avoid propaganda like “responsible withdrawal” in even these bureaucratic communications? (Or “working closely with the Yemeni government to operationally dismantle … AQAP”?)

Nevertheless, even dripping with propagandistic language as it is, this passage seems to be official notice to Congress that the war in Iraq is over, done, kaput.

So now can we repeal the Iraq AUMF?

As you’ll recall, over six months ago, Rand Paul proposed an amendment to repeal the still-active Iraq AUMF. It failed miserably, 30-67. During the debate on it, a bunch of reasonable Democrats (and all the usual suspect unreasonable ones) stood up and blathered on about why we need an AUMF for a war that is over. If you asked now they’d probably point to the bad crowd Iraq is hanging out with in OPEC circles.

Iran and Iraq are forming a strengthening alliance inside Opec, raising concerns among moderate Arab Gulf producers like Saudi Arabia and increasing the potential for discord in the oil producers’ group.

[snip]

A particular bone of contention was a proposal by Venezuela – backed by other Opec hardliners like Iran, Iraq and Algeria – that the group should protest against the EU sanctions against Tehran over its nuclear programme. The move was rebuffed by Saudi Arabia and other moderates including Nigeria, Libya and Kuwait, who argued that such protests were the preserve of foreign ministers, not oil ministers.

(Yes, you read that right: Saudi Arabia is considered a “moderate” state in this context.)

Or they’d point to the series of bombings al Qaeda in Iraq has claimed credit for recently.

But the real reason they won’t repeal an AUMF for a war that has officially ended is because that AUMF expands the authority to fight terrorism beyond simply al Qaeda to whatever “terrorist” groups the President claims is in armed conflict with and poses a threat to the US. Indeed, in Mark Udall’s effort to “fix” the NDAA, he even suggested the Iraq War AUMF pertained to “covered persons” who could be detained indefinitely under that law.

I know it sounds funny, having to insist on ending a war the Administration just informed Congress is over. But it’s not over.

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

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Steven Aftergood suggests there’s disagreement among Senate Intelligence Committee members about whether or not the FISA Amendments Act allows the government to get US person content without a warrant.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

I don’t think there is a conflict. Rather, I think DiFi simply responded to Wyden and Udall’s assertions with the same spin the government has used for some time. That’s because DiFi is talking about “targeting” and Wyden and Udall are talking about “searching” US person communications.

DiFi quotes much of the language from Section 702 earlier in her statement on FAA, repeating, repeating the word “target” three times.

In enacting this amendment to FISA, Congress ensured there would be important protections and oversight measures to safeguard the privacy and civil liberties of U.S. persons, including specific prohibitions against using Section 702 authority to: “intentionally target any person known at the time of acquisition to be located in the United States;” “intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;” “intentionally target a United States person reasonably believed to be located outside the United States;” or “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” As an additional measure the law also requires that an acquisition under Section 702 “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [my emphasis]

Her specific retort to the problem Wyden and Udall differentiates clearly between “querying information collected under Section 702 to find communications of a particular United States person” and “conduct[ing] queries to analyze data already in its possession” and “targeting.”

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. Read more →