On September 14, 2001 — 3 days before signing an expansive Memorandum of Notification that would authorize a suite of covert operations against al Qaeda, and 4 days before signing an AUMF that would give those operations the appearance of Congressional sanction — President Bush declared a National Emergency in response to the 9/11 attack.
The following day, according to a 2002 motion to the FISC to be able to share raw FISA-derived information with CIA and NSA (this was liberated by Charlie Savage), FISC suspended its rules on sharing intelligence derived under FBI-obtained FISA warrants with criminal investigations (see page 26 of this paper for background).
On September 15, 2001, upon motion of the Government, the [FISA] Court suspended the “Court wall,” certification, and caveat requirements that previously had applied to Court-authorized electronic surveillance and physical search of [redacted] related targets, while directing that the FBI continue to apply the standard minimization procedures applicable in each case. As stated in the order resulting from that motion, the Court took this action in light of inter alia:
“the President’s September 14, 2001, declaration of a national emergency and the near war conditions that currently exist;”
“the personal meeting the Court had with the Director of the FBI on September 12, 2001, in which he assured the Court of the collection authority requested from this Court in the face of the nature and scope of the multi-faced response of the United States to the above-referenced attacks;
“the need for the Government to rapidly disseminate pertinent foreign intelligence information to appropriate authorities.”
Ten days after FISC dismantled its role in “the wall” between intelligence and criminal investigations in response to the Executive’s invocation of a National Emergency, on September 25, 2001, John Yoo finished an OLC memo considering the constitutionality of dismantling the wall by replacing “the purpose” in FISA orders with “a purpose.”
A full month later, on October 25, 2001, Congress passed the PATRIOT Act. For over 13 years, analysis of the PATRIOT Act has explained that it eliminated “the wall” between intelligence and criminal investigations by replacing language requiring foreign intelligence be “the purpose” of FISA wiretaps with language requiring only that that be “a significant purpose” of the wiretap. But the FISC suspension had already removed the biggest legal barrier to eliminating that wall.
In other words, the story we’ve been telling about “the wall” for over 13 years is partly wrong. The PATRIOT Act didn’t eliminate “the wall.” “The wall” had already been suspended, by dint of Executive Proclamation and a secret application with the FISC, over a month before the PATRIOT Act was initially introduced as a bill.
FISC suspended it, without congressional sanction, based on the President’s invocation of a National Emergency.
That’s not the only case where the Executive invoked that National Emergency in self-authorizing or getting FISC to authorize expansive new surveillance authorities (or has hidden the authorities under which it makes such claims).
Perhaps most illustratively, on May 6, 2004, Jack Goldsmith pointed to the National Emergency when he reauthorized most aspects of Stellar Wind.
On September 14, 2001. the President declared a national emergency “by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” Proclamation No. 7463, 66 Fed. Reg. 43, !99 (Sept. 14, 2001). The United States also launched a massive military response, both at home and abroad. In the United States, combat air patrols were immediately established over major metropolitan areas and were maintained 24 hours a day until April 2002, The United States also immediately began plans for a military response directed at al Qaeda’s base of operations in Afghanistan.
Only after invoking both the Proclamation and the immediate military response that resulted did Goldsmith note that Congress supported such a move (note, he cited Congress’ September 14 passage of the AUMF, not Bush signing it into law on September 18, thought that may be in part because Michael Hayden authorized the first expansions of surveillance September 14; also remember there are several John Yoo memos that remain hidden) and then point to an article on the friendly-fire death of Pat Tillman as proof that combat operations continued.
On September 14, 2001, both houses of Congress passed a joint resolution authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September I I. Congressional Authorization § 2(a). Congress also expressly acknowledged that the attacks rendered it “necessary and appropriate” for the United States to exercise its right “to protect United States citizens both at home and abroad,” and acknowledged in particular that the “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” id. pmbl. Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See, e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at AI (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remains of the Taliban and al Qaeda”).
That is, even in an OLC memo relying on the AUMF to provide legal sanction for President Bush’s systematic flouting of FISA for 2.5 years, Goldsmith relied primarily on the National Emergency Proclamation, and only secondarily on Congress’ sanction of such invocation with the AUMF.
The White Paper released in 2006 largely regurgitating Goldsmith’s opinion for more palatable consumption mentions the AUMF first in its summary, but then repeats Goldsmith’s emphasis on the Proclamation in the background section (see pages 2 and 4).
Paragraphs that may discuss such authorizations get redacted in the 2006 application to move content collection under FISC (see page 6). The entire background section (starting at page 5) of the initial Internet dragnet application is also redacted. While we can’t be sure, given parallel claims made in the same 2004 to 2006 period, it seems likely those memoranda also repeated this formula.
Such a formula was definitely dropped. The 2006 memorandum in support of using Section 215 to create a phone dragnet included no mention of authorities. The 2007 memorandum to compel Yahoo to fulfill Protect American Act orders cites PAA, not Emergency Declarations.
But the formula was retained in all discussions of the Administration’s illegal wiretap program in secret declarations submitted in court in 2006, 2007, and 2009, being repeated again in an unclassified 2013 declaration. While these declarations likely all derive, at least in part, from Goldsmith’s memo, it’s worth noting that the government has consistently suggested it could conduct significant surveillance programs without Congressional sanction by pointing to the that National Emergency Proclamation.
This is the precedent I meant to invoke when I expressed concern about President Obama’s expansive Executive Order of the other day, declaring a National Emergency because of cybersecurity.
Ranking House Intelligence Member Adam Schiff’s comment that Obama’s EO is “a necessary part of responding to the proliferation of dangerous and economically devastating cyber attacks facing the United States,” but that it will be “coupled with cyber legislation moving forward in both houses of Congress” only adds to my alarm (particularly given Schiff’s parallel interest in giving Obama soft cover for his ISIL AUMF while having Congress still involved). It sets up the same structure we saw with Stellar Wind, where the President declares an Emergency and only a month or so later gets sanction for and legislative authorization for actions taken in the name of that emergency.
And we know FISC has been amenable to that formula in the past.
We don’t know that the President has just rolled out a massive new surveillance program in the name of a cybersecurity Emergency (rooted in a hack of a serially negligent subsidiary of a foreign company, Sony Pictures, and a server JP Morgan Chase forgot to update).
We just know the Executive has broadly expanded surveillance, in secret, in the past and has never repudiated its authority to do so in the future based on the invocation of an Emergency (I think it likely that pre FISA Amendments Act authorization for the electronic surveillance of weapons proliferators, even including a likely proliferator certification under Protect America Act, similarly relied on Emergency Proclamations tied to all such sanctions).
I’m worried about the Cyber Intelligence Sharing Act, the Senate version of the bill that Schiff is championing. But I’m just as worried about surveillance done by the executive prior to and not bound by such laws.
Because it has happened in the past.
Update: In his October 23, 2001 OLC memo authorizing the President to suspend the Fourth Amendment (and with it the First), John Yoo said this but did not invoke the September 14, 2001 proclamation per se.
As applied to the present circumstances, the [War Powers Resolution] signifies Congress’ recognition that the President’s constitutional authority alone enables him to take military measures to combat the organizations or groups responsible for the September 11 incidents, together with any governments that may have harbored or supported them, if such actions are, in his judgment, a necessary and appropriate response to the national emergency created by those incidents.
Update: Thanks to Allen and Joanne Leon for the suspend/suspect correction.
We are now in the “final” week of negotiations to set the framework for the P5+1 long-term agreement on Iran’s nuclear technology. With so much in the balance, voices are popping up from every direction to offer their opinions on what constitutes a good or bad deal. While Netanyahu’s address to Congress dominated the headlines in that regard, other sources also have not held back on offering opinions. In the case of Netanyahu, informed observers considering his remarks knew in advance that Netanyahu considers Iran an “existential threat” to Israel and that violent regime change in Iran is his preferred mode of addressing Iran’s nuclear technology. When it comes to other opinions being offered, it is important to also have a clear view of the backgrounds of those offering opinions so that any biases they have can be brought into consideration.
With that in mind, the Washington Post has committed a gross violation of the concept of full disclosure in an Iran op/ed they published yesterday. I won’t go into the “substance” of this hit piece on Iran, suffice it note that the sensationalist headline (The Iran time bomb) warns us that the piece will come from an assumption that Iran seeks and will continue to seek a nuclear weapon regardless of what they agree to with P5+1.
The list of authors for this op/ed is an anti-Iran neocon’s wet dream. First up is Michael Hayden. The Post notes that Hayden led the CIA from 2006-2009 and the NSA from 1999 to 2005. I guess they don’t think it’s important to note that he now is a principal with the Chertoff Group and so stands to profit from situations in world politics that appear headed toward violence.
The third of the three authors is perhaps the least known, but he’s a very active fellow. Here is how Nima Shirazi describes Ray Takeyh:
Takeyh is a mainstay of the Washington establishment – a Council on Foreign Relations Senior Fellow before and after a stint in the Obama State Department and a founding member of the neoconservative-created Iran Strategy Task Force who has become a tireless advocate for the collective punishment of the Iranian population in a futile attempt to inspire homegrown regime change (if not, at times, all-out war against a third Middle Eastern nation in just over a decade). Unsurprisingly, he dismisses out of hand the notion that “the principal cause of disorder in the Middle East today is a hegemonic America seeking to impose its imperial template on the region.”
The Post, of course, doesn’t mention Takeyh’s association with the group Shirazi describes, nor his membership in another Iran Task Force organized by the Jewish Institute for National Security Affairs.
Sandwiched between Hayden and Takeyh, though, is the Post’s biggest failure on disclosure. Olli Heinonen is described by the Post simply as “a senior fellow at Harvard’s Belfer Center for Science and International Affairs and a former deputy director general of the International Atomic Energy Agency”. As such, uninformed readers are likely to conclude that Heinonen is present among the authors to serve as a hefty dose of neutrality,given his background in the IAEA. Nothing could be further from the truth. What the Post fails to disclose is that Heinonen is also a prominent member of the Advisory Board of United Against Nuclear Iran.
Not only is UANI an advocacy group working against Iran, but they are currently embroiled in litigation in which it has been learned that UANI has come into possession of state secrets from the United States. The Department of Justice has weighed in on the UANI case, urging the judge to throw the case out on the grounds that continuing to litigate it will disclose the US state secrets that UANI has obtained. Since the litigation involves UANI actions to “name and shame” companies it accuses of violating US sanctions against Iran, one can only assume that the state secrets leaked to UANI involve Iran.
How in the world could the Washington Post conclude that Heinonen’s role on the Advisory Board for United Against Nuclear Iran would not be something they should disclose in publishing his opinion piece entitled “The Iran time bomb”?
Oh, and lest we come to the conclusion that failing to note Heinonen’s UANI connection is a one-off thing in which Heinonen himself is innocent, noted AP transcriptionist of neocon anti-Iran rhetoric George Jahn used Heinonen in exactly the same way a month ago.
We can only conclude that Heinonen is happily doing the neocons’ bidding in their push for war with Iran.
Both WaPo and Newsweek have stories out on CIA’s role in assassinating Imad Mugniyah in 2008. As described, Michael Hayden loved the idea, but then got a bit squeamish about ordering a hit. Luckily, President Bush was all too happy to approve it. Here’s Newsweek:
“General Hayden, at first, was all for this,” the former official said, “But slowly, or maybe not so slowly, the realization set in for him that he was ordering an assassination, that basically he was putting out a hit. And once he became pretty much cognizant of the fact that he was basically ordering the murder of someone, he got cold feet. He didn’t fancy himself as a Corleone.”
And he wasn’t, really. That role would ultimately fall to the president.
“Obviously [Hayden] had to get authority for this, and authority could come from only one person, and that would be POTUS,” said the participant. “So he went down to see President Bush. It took Bush apparently only about 30 seconds to say, ‘Yes, and why haven’t you done this already? You have my blessing. Go with God.’”
But in late December, with the bomb ready and Mugniyah firmly in their sights, Hayden “started to get really cold feet again,” the participant said. He decided to go see President Bush personally—on Christmas Eve 2007, at Camp David.
“On Christmas Eve morning, he and [Deputy CIA Director Steven] Kappes fly up to Camp David to see POTUS, to say, ‘Okay, look, here’s what we got, everything is in place, do we still have the go-ahead?’ And POTUS basically threw both of them out, saying, ‘Why are you up here wasting my time on Christmas Eve? Get the fuck out and go do this. Not quite in those terms. But it was, ‘Yes, I’ve already given you my approval. Go do this; go with God.’”
“Go with our Christian God,” I guess Bush meant.
Both pieces emphasize how careful the CIA and Mossad were with their terrorist tactics, to make sure only their target was killed. Again, Newsweek:
Finally, the car was in place. But then there were always other people around. Weeks more went by. Hayden’s demands that only Mugniyah be killed, and no one else, with no collateral damage, had to be met.
“It was always either he wasn’t alone, or he had his kids with him, or somebody else with him, or there were casuals in the area, or he was gone, he was in the Bekka [Valley] or someplace else, he wasn’t in his apartment,” the participant said. “The rules of engagement were so tight that he probably walked past the thing dozens of times but they just couldn’t do anything because somebody was there or it just didn’t fit into the rules of engagement.”
“They were keeping watch on this just about all the time,” he added. “They were taking shifts, a station officer and a Mossad officer. The Mossad officer was there just to make the confirmation that, ‘yeah, that’s him.’”
The kill was made all the harder by the way the bomb would be detonated. There was a two-second delay from the time the CIA and Mossad agents in the lookout post pushed the button to when the bomb exploded. Under the plan, the Mossad agent would ID Mugniyah, and the CIA man would press the remote control.
“So you would have to count—one, one thousand; two, one thousand… “ the participant said. “They had about six seconds from the time he came out of the apartment door to the time he moved out of the danger zone. So they had to do it really fast.”
And WaPo notes how tedious it was to get approval to kill a guy whose attacks on the US were years earlier, under Reagan.
Former U.S. officials, all of whom spoke on the condition of anonymity to discuss the operation, asserted that Mughniyah, although based in Syria, was directly connected to the arming and training of Shiite militias in Iraq that were targeting U.S. forces. There was little debate inside the Bush administration over the use of a car bomb instead of other means.
“Remember, they were carrying out suicide bombings and IED attacks,” said one official, referring to Hezbollah operations in Iraq.
The authority to kill Mughniyah required a presidential finding by President George W. Bush. The attorney general, the director of national intelligence, the national security adviser and the Office of Legal Counsel at the Justice Department all signed off on the operation, one former intelligence official said.
The former official said getting the authority to kill Mughniyah was a “rigorous and tedious” process. “What we had to show was he was a continuing threat to Americans,” the official said, noting that Mughniyah had a long history of targeting Americans dating back to his role in planning the 1983 bombing of the U.S. Embassy in Beirut.
“The decision was we had to have absolute confirmation that it was self-defense,” the official said.
(Note, Newsweek says the Finding was signed under Reagan, which actually makes more sense since the Gloves Come Off Memorandum of Notification Bush and Obama have relied on was also a modification of a Finding signed by him.)
This is, presumably, meant to be a big success story for CIA. My hope, however, is that it adds some nuance to debates about our use of drones. If the US kills more collateral casualties using drones than using a classic terrorist technique — in both cases making really attenuated claims about current threats — which is the greatest terror technique?
Update: Kevin Jon Heller argues the US violated the Terrorist Bombing Convention.
The Shadow Factory was published on October 14, 2008.
8 days before that, the NSA notified the Senate Intelligence Committee (just the SSCI at first?!?!) about an impending (it aired on October 9) Brian Ross interview with whistleblowers from James Bamford‘s book on ABC.
The interview included a clip from Michael Hayden’s 2006 CIA Director confirmation hearing before SSCI in which he claimed Americans’ private conversations would never be intercepted.
In testimony before Congress, then-NSA director Gen. Michael Hayden, now director of the CIA, said private conversations of Americans are not intercepted.
“It’s not for the heck of it. We are narrowly focused and drilled on protecting the nation against al Qaeda and those organizations who are affiliated with it,” Gen. Hayden testified.
He was asked by Senator Orrin Hatch (R-UT), “Are you just doing this because you just want to pry into people’s lives?”
“No, sir,” General Hayden replied.
It also included flaccid responses from both then CIA Director Hayden and his spokesperson Mark Mansfield (who was actively involved in pre-emptive leaks to the press on torture) and Keith Alexander (who was Deputy Chief of Staff for Army Intelligence at the time of the violations).
In addition, the ABC report included a quote from then SSCI Chair Jello Jay Rockefeller (who, of course, would have found out about it from the agency days before the report).
The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations “extremely disturbing” and said the committee has begun its own examination.
“We have requested all relevant information from the Bush Administration,” Rockefeller said Thursday. “The Committee will take whatever action is necessary.”
It also made clear that Orrin Hatch had been the one to pitch the softball to Hayden in 2006, about which — it is abundantly clear — he lied about.
Finally, it includes an anonymous quote from a “US intelligence official” making it clear that all US government employees might be spied on, contrary to Hayden’s public claims during the confirmation process.
Asked for comment about the ABC News report and accounts of intimate and private phone calls of military officers being passed around, a US intelligence official said “all employees of the US government” should expect that their telephone conversations could be monitored as part of an effort to safeguard security and “information assurance.”
There appear to be several things going on with this.
First, this is ABC News, one of the outlets notorious for laundering intelligence claims; indeed, it is possible this is a limited hangout, an attempt to preempt one of the most alarming revelations in Bamford’s book. While the report doesn’t say it explicitly, it implies the claims of whistleblowers Kinne and Faulk prove Hayden to have lied in his CIA Director confirmation hearing, in response to the softball thrown by Hatch. In any case, the briefing about this disclosure appears to have gone exclusively to SSCI (with follow-up briefings to both intelligence oversight committees afterwards), the committee that got the apparently false testimony (and not for the last time, from Michael Hayden!). But by briefing the Committee, it also gave Jello Jay an opportunity — and probably, explicit permission — to sound all stern about a practice the Committee likely knew about.
In the IOB Report, this is portrayed as a model of oversight. But from what we know about the parties involved, it is just as likely to have been an effort at press management.
Update: The 3Q 2009 report describes the outcome of the report. It found “no targeting of US persons.”
As I noted, the NSA released its quarterly reports to the Intelligence Oversight Board as a FOIA-coal-for-Christmas present. In them, we see how the NSA executed a bit of legal chicanery with respect to Stellar Wind which had previously been revealed in the 2009 Draft IG Report on Stellar Wind.
The report claims that NSA’s Inspector General did not get read into the program until August 2002. The IG Report claims to be mystified as to why NSA operated an illegal program for 9 months before reading in the IG; it offers the suggestion that President Bush didn’t want to read in the IG until NSA had a named IG, rather than an Acting one — but that doesn’t explain why they waited 4 months after Joel Brenner came in in April 2002.
(TS//SI//NF) We could not determine exact reasons for why the NSA IG was not cleared for the PSP until August 2002. According to the NSA General Counsel, the President would not allow the IG to be briefed sooner. General Hayden did not specifically recall why the IG was not brought in earlier, but thought that it had not been appropriate to do so when it was uncertain how long the Program would last and before operations had stabilized. The NSA IG pointed out that he did not take the IG position until April 2002, so NSA leadership or the White House may have been resistant to clearing either a new or an acting IG.
One of the things Brenner instituted — the report claims it started almost a year after he came in and more than 6 months after he got read into the program — was to make the IOB reports technically correct by stating that there might be incidents not noticed to IOB but instead noticed to the President.
(C) Second, in March 2003, the IG advised General Hayden that he should report violations of the Authorization to the President. In February of 2003, the OIG learned of PSP incidents or violations that had not been reported to overseers as required, because none had the clearance to see the report.
(TS//SI//OC/NF) Before March 2003, NSA quarterly reports on intelligence activities sent to the President’s Intelligence Oversight Board (through the Assistant to the Secretary of Defense for Intelligence Oversight) stated that the Director was not aware of any unlawful surveillance activities by NSA other than that described in the report. Beginning in March 2003, at the IG’s direction, NSA quarterly reports stated that except as disclosed to the President, the Director was not aware of any unlawful surveillance activities by NSA. Also beginning in March 2003, PSP violations, including those not previously reported to the Intelligence Oversight Board, were reported in “Presidential Notifications.”
But that’s actually not correct. The change appears in the December 4, 2002 report.
If the remaining chronology is correct — that Brenner had not yet convinced Hayden to tell the President about violations and that there were some February 2003 violations that did not get reported — then the December 2002 report was inaccurate, because the President would not have been noticed.
What I find interesting about it is how signatures were handled before that. In the June 2002 report — at a time when Brenner was not read into the program — he signed the report himself. In the August 27, 2002 report (which was presumably submitted just after Brenner got read into Stellar Wind), Brian McAndrew, who had been Acting IG before Brenner took over, signed for him.
And, in perhaps related metadata, there’s this, from the December 2001 report (that is, the first one after the initiation of Stellar Wind).
I think, though am not certain, this note comes from Michael Hayden (with an “H” in the circle), to whom the memo is addressed. He appears to have asked Robert Deitz to discuss the implications of this notice further before he signed it. And someone amended the notice, to include violations known to affiliated (agency?) directors but not to Hayden.
That is, it seems possible that even Michael Hayden hesitated to say this report included all violations of law without Robert Deitz (who has written some robust defenses of NSA since the Snowden leaks) holding his hand somewhat.
Update: Note that the coversheet with Hayden’s note was initially dated December 7, 2001. But the date on the letter he signed was January 4, 2002. That suggests they could have actually changed the content of the letter in response to Hayden’s concerns, though such a delay appears normal given the other reports.
Of course, this entire structure is premised on the caveat that the President can instruct agency heads not to include violations he doesn’t want them to. And the gaming of some signatures to avoid making false declarations is child’s play compared to what Obama did at the beginning of his Administration, which was basically to let the entire board lapse by not appointing anyone.
Still, the games they were playing with their declarations suggests these men — who’ve made broad comments about how well NSA follows the law — know they were fibbing.
In awesome news, the Federal Trade Commission has hired Ashkan Soltani — the tech expert who helped Bart Gellman on many of his most important Snowden scoops — as its new Chief Technology Officer.
The news has elicited wails from NSA’s mail mouthpieces, Stewart Baker and Michael Hayden.
“I’m not trying to demonize this fella, but he’s been working through criminally exposed documents and making decisions about making those documents public,” said Michael Hayden, a former NSA director who also served as CIA director from 2006 to 2009. In a telephone interview with FedScoop, Hayden said he wasn’t surprised by the lack of concern about Soltani’s participation in the Post’s Snowden stories. “I have no good answer for that.”
Stewart Baker, a former NSA general counsel, said, while he’s not familiar with the role Soltani would play at the FTC, there are still problems with his appointment. “I don’t think anyone who justified or exploited Snowden’s breach of confidentiality obligations should be trusted to serve in government,” Baker said.
I find Hayden’s wails especially disgusting, given the way — it is now clear — the government spent so much effort covering up how he extended the illegal wiretap program in March 2004. I mean, I’m not trying to demonize the fella, but he’s a criminal, and yet he’s complaining about the press reporting on abuses?
That said, I’m curious whether this isn’t the real reason there seems to be organized pushback against Soltani’s hire.
Soltani is scheduled to give a presentation Nov. 19 at the Strata+Hadoop World conference in Barcelona, Spain, on “how commercial tracking enables government surveillance.” According to the conference website, Soltani’s presentation will explore how “the dropping costs of bulk surveillance is aiding government eavesdropping, with a primary driver being how the NSA leverages data collected by commercial providers to collect information about innocent users worldwide.”
At FTC, Soltani will be in a role where he can directly influence the kind of regulatory pressure placed on data collectors to protect user privacy. He understands — probably far more than we know from the WaPo stories — how NSA is capitalizing on already collected data. Which means he may be able to influence how much remains available to the spooks.
So maybe all this wailing is an effort to sustain the big commercial data’s unwitting support for big spooky data?
If the documents relating to Yahoo’s challenge of Protect America Act released last month are accurate reflections of the documents actually submitted to the FISC and FISCR, then the government submitted a misleading document on June 5, 2008 that was central to FISCR’s ultimate ruling.
As I laid out here in 2009, FISCR relied on the the requirement in EO 12333 that the Attorney General determine there is probable cause a wiretapping technique used in the US is directed against a foreign power to judge the Protect America Act met probable cause requirements.
The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern.
The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.
44 Fed. Reg. at 59,951 (emphasis supplied). Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power. Moreover, this determination was not made in a vacuum. The AG’s decision was informed by the contents of an application made pursuant to Department of Defense (DOD) regulations. See DOD, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons, DOD 5240.1-R, Proc. 5, Pt. 2.C. (Dec. 1982).
Yahoo didn’t buy this argument. It had a number of problems with it, notably that nothing prevented the government from changing Executive Orders.
While Executive Order 12333 (if not repealed), provides some additional protections, it is still not enough.
Thus, to the extent that it is even appropriate to examine the protections in the Executive Order that are not statutorily required, the scales of the reasonableness determination sway but do not tip towards reasonableness.
Yahoo made that argument on May 29, 2008.
Sadly, Yahoo appears not to have noticed the best argument that Courts shouldn’t rely on EO 12333 because the President could always change it: Sheldon Whitehouse’s revelation on December 7, 2007 (right in the middle of this litigation) that OLC had ruled the President could change it in secret and not note the change publicly. Whitehouse strongly suggested that the Executive in fact had changed EO 12333 without notice to accommodate its illegal wiretap program.
But the government appears to have intentionally withheld further evidence about how easily it could change EO 12333 — and in fact had, right in the middle of the litigation.
This is the copy of the Classified Annex to EO 12333 that (at least according to the ODNI release) the government submitted to FISCR in a classified appendix on June 5, 2008 (that is, after Yahoo had already argued that an EO, and the protections it affords, might change). It is a copy of the original Classified Appendix signed by Ed Meese in 1988.
As I have shown, Michael Hayden modified NSA/CSS Policy 1-23 on March 11, 2004, which includes and incorporates EO 12333, the day after the hospital confrontation. The content of the Classified Annex released in 2013 appears to be identical, in its unredacted bits, to the original as released in 1988 (see below for a list of the different things redacted in each version). So the actual content of what the government presented may (or may not be) a faithful representation of the Classified Appendix as it currently existed.
But the version of NSA/CSS Policy 1-23 released last year (starting at page 110) provides this modification history:
This Policy 1-23 supersedes Directive 10-30, dated 20 September 1990, and Change One thereto, dated June 1998. The Associate Director for Policy endorsed an administrative update, effective 27 December 2007 to make minor adjustments to this policy. This 29 May 2009 administrative update includes changes due to the FISA Amendments Act of 2008 and in core training requirements.
That is, Michael Hayden’s March 11, 2004 modification of the Policy changed to the Directive as existed before 2 changes made under Clinton.
Just as importantly, the modification history reflects “an administrative update” making “minor adjustments to this policy” effective December 27, 2007 — a month and a half after this challenge started.
By presenting the original Classified Appendix — to which Hayden had apparently reverted in 2004 — rather than the up-to-date Policy, the government was presenting what they were currently using. But they hid the fact that they had made changes to it right in the middle of this litigation. A fact that would have made it clear that Courts can’t rely on Executive Orders to protect the rights of Americans, especially when they include Classified Annexes hidden within Procedures.
In its language relying on EO 12333, FISCR specifically pointed to DOD 5240.1-R. The Classified Annex to EO 12333 is required under compliance with part of that that complies with the August 27, 2007 PAA compliance.
That is, this Classified Annex is a part of the Russian dolls of interlocking directives and orders that implement EO 12333.
And they were changing, even as this litigation was moving forward.
Only, the government appears to have hidden that information from the FISCR.
Update: Clarified that NSA/CSS Policy 1-23 is what got changed.
Update: Hahaha. The copy of DOD 5240.1 R which the government submitted on December 11, 2007, still bears the cover sheet labeling it as an Annex to NSA/CSS Directive 10-30. Which of course had been superseded in 2004.
I recommend this ArsTechnica background piece on EO 12333. It describes how Ronnie Reagan issued EO 12333 to loosen the intelligence rules imposed by Jimmy Carter (with links to key historical documents). It includes interviews with the NSA whistleblowers describing how George Bush authorized the collection of telecom data from circuits focused on the US under the guise of EO 12333, calling the bulk of the US person data collected “incidental.” And it describes how Bush and Obama have continued using EO 12333 as a loophole to obtain US person data.
But there’s a key part of the story Ars misses, which I started to lay out here. As this graphic notes, the NSA is governed by a set of interlocking authorities and laws. The precedence of those authorities and laws is not terribly clear — and NSA’s own training programs don’t make them any more clear. Bush’s revision to EO 12333 played on that interlocking confusion.
Perhaps most alarming, however, the NSA continued to use a classified annex to EO 123333 written by Michael Hayden the day he reauthorized the illegal wiretap program at least until recent years — and possibly still. And that classified annex asserts an authority to wiretap Americans on the Attorney General’s authorization for periods of up to 90 days, and wiretap “about” collection based solely on NSA Director authority.
Among the documents released to ACLU and EFF via FOIA was an undated “Core Intelligence Oversight Training” program that consists of nothing more than printouts of the authorities governing NSA activities (as I noted in this post, with one exception, the NSA training programs we’ve seen are unbelievably horrible from a training efficacy standpoint). It includes, in part, EO 12333, DOD 5240.1-R, and NSA/CSS Policy 1-23 (that is, several of the authorities NSA considers among its signature authorities). As part of a 2009 issuance of the latter document (starting on page 110), the training documents also include the classified annex to EO 12333 (starting on page 118). And although both documents are part of that 2009 issuance (which incorporated language reflecting the FISA Amendments Act), they are dated March 11, 2004 — the day after the hospital confrontation, when the Bush Administration continued its illegal wiretap program without DOJ sanction — and signed by then DIRNSA Michael Hayden.
That is, as part of the FOIA response to ACLU and EFF, DOJ revealed how it was secretly applying EO 12333 at least as recently as 2009.
And that secret application of EO 12333 includes two provisions that illustrate how the government was abusing EO 12333, even in the face of revisions to FISA. They include provisions permitting the wiretapping of Americans for 90-day periods based on AG certification, and the wiretapping of “about” communications for apparently unlimited periods based on DIRNSA certification. (see page 123)
The early focus on the dragnet violations was on the phone dragnet. At the end of March, however, DOJ started preparing to look more closely at the PRTT program in late April 2009, which may be why some of the following violations got disclosed to Reggie Walton in conjunction with a May reauthorization application. The CIA, FBI, and NCTC access to the PRTT seems to have been a bigger issue than the BR FISA data.
All that said, when the NSA completed its End-to-End report sometime in fall 2009, they didn’t report all that much beyond the violations noted in May (though they did note the NSA did not shut down some automatic process when it said it did), mostly by claiming they didn’t realize the original dragnet order meant what it said (in spite of the violation in the first dragnet order).
It was only after that that they noticed FISC NSA had been collecting content from the start of the program (see document O). Once they admitted that, NSA decided not to reapply for a Primary Order, and Reggie Walton issued a supplemental order (document E) ordering them not to collect any more, but also not to access the data they did have. Only after that did DOJ submit the End-to-End report, accompanied by DOJ and Keith Alexander reports that admitted the content violation.
I Con the Record just released some ridiculously overclassified Internet dragnet documents it claims shows oversight but which actually shows how they evaded oversight. I’ve added letters to ID each document (I’ll do a post rearranging them into a timeline tomorrow or soon thereafter).
For a timeline I did earlier of the Internet dragnet program see this post.
This will be the first of several working threads, starting with descriptions of what we’ve got.
8/12: Note I will be updating this as I can clarify dates and content.
B. FISC Primary Order: This is an Internet dragnet order signed by Reggie Walton, probably in 2008 or very early 2009. It shows that the Internet dragnet program, which was almost certainly illegal in any case, had less oversight than the phone dragnet program (though at this point also collected fewer records). It was turned over pursuant to FAA requirements on March 13, 2009.
C. FISC Primary Order: This is an Internet dragnet order probably from May 29, 2009 (as identified in document D), signed by Reggie Walton. It shows the beginning of his efforts to work through the Internet violations. It appears to have been provided to Congress on August 31, 2009.
D. FISC Order and Supplemental Order: This is a version of the joint June 22, 2009 order released on several occasions before. It shows Reggie Walton’s efforts to work through the Internet dragnet violations. Here’s one version.
E. FISC Supplemental Order: This appears to be the dragnet order shutting down dragnet production. It would date to fall 2009 (production was likely shut down in October 2009, though this might reflect the initial shut-down).
F. FISC Primary Order: I’m fairly sure this is an order from after Bates turned the Internet dragnet back on in 2010 (and is signed by him), though I will need to verify that. It does require reports on how the NSA will segregate previously violative records, which is consistent with it dating to 2011 sometime (as is the requirement that the data be XML tagged).
G. FISC Memorandum Opinion Granting in Part and Denying in Part Application to Reinitiate, in Expanded Form, Pen Register/Trap and Trace Authorization: This is the order, from sometime between July and October 2010, where John Bates turned back on and expanded the Internet dragnet. Here’s the earlier released version (though I think it is identical).
H. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This was a report Walton required in document C, above, and so would be in the May-June 2009 timeframe. Update: Likely date June 18, 2009.
I. Government’s Response to the FISC’s Supplemental Order: This is the government’s response to an order from Walton, probably in his May 29, 2009 opinion (see this order for background), or even earlier in May.Update: This response dates to June 18, 2009 or slightly before.
J. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration submitted in support of Response I and cited in several places. Update: likely date June 18, 2009.
K. Supplemental Declaration of Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate, the National Security Agency: This appears to be the declaration that led to document C above.
L. Government’s Response to the FISC’s Supplemental Order Requesting a Corrective Declaration: This is a declaration admitting dissemination outside the rules responding to 5/29 order.
M. Government’s Response to a FISC Order: This is the government’s notice that it was using automatic queries on Internet metadata, just as it also was with the phone dragnet. This notice was provided to Congress in March 2009.
N. Declaration of Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Compliance with a FISC Order: After Walton demanded declarations in response to the initial phone dragnet violation, he ordered NSA to tell him whether the Internet dragnet also had the same problems. This is Keith Alexander’s declaration describing the auto scan for that program too. It was provided to Congress in March 2009.
O. Preliminary Notice of Potential Compliance Incident: This is the first notice of the categorical violations that ultimately led to the temporary shutdown of the dragnet, in advance of order E.
P. Notice of Filing: This is notice of a filing in response to inquiry from Judge Walton. It could be from any time during David Kris’ 2009 to early 2011 tenure.
Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes:
This appears to be the application following Order E, above. I don’t think it’s the 2010 application that led to the reauthorization of the dragnet, because it refers to facilities whereas the 2010 order authorized even broader collection. (Remember Bates’ 2010 order said the government applied, but then withdrew, an application.) Update and correction: this application must post-date December 2009, because that’s when NSA changed retention dates from 4.5 years to 5. Also note reference to change in program and request to access illegally collected data from before 10/09.
R. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: This appears to be the memorandum of law accompanying application Q.
S. Declaration of General Keith B. Alexander, U.S. Army, Director, NSA, in Support of Pen Register/Trap and Trace Application: This is Alexander’s declaration accompanying Q.
T. Exhibit D in Support of Pen Register/Trap and Trace Application: This is a cover letter. I’m not sure whether it references prior communications or new ones.
U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This is the first of several letters in support of reinitiation of the program. The tone has changed dramatically here. For that reason, and because so much of it is redacted, I think this was part of the lead-up to the 2010 reauthorization.
V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices: This second letter is entirely redacted except for the sucking up to Bates stuff.
W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices: More sucking up. Some language about trying to keep access to the existing illegally collected data.
X. Application for Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes: This is the first application for the Internet dragnet, from 2004. Very interesting. Note it wasn’t turned over until July 2009, after Congress was already learning of the new problems with it.
Y. Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes: The memorandum of law accompanying X. Also turned over to Congress in 2009.
Z. Declaration of General Michael V. Hayden, U.S Air Force, Director, NSA, in Support of Pen Register/Trap and Trace Application: This goes with the initial application. NSA has left stuff unredacted that suggests they were access less bandwith than they, in the end, were. Also remember NSA violated this from the very beginning.
AA. Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes:
This appears to be the application for the second PRTT order. I’ll return to this tomorrow, but I don’t think it reflects the violation notice it should.
BB. Declaration of NSA Chief, Special FISA Oversight and Processing, Oversight and Compliance, Signals Intelligence Directorate:
This is NSA’s declaration in conjunction with the first reapplication for the dragnet. This should have declared violations. It was turned over to Congress in March 2009. [update: these appear to be early 2009 application]
CC. Declaration Lieutenant General Keith B. Alexander, U.S. Army, Director, NSA, Concerning NSA’s Implementation of Authority to Collect Certain Metadata: This is Alexander’s declaration accompanying the End-to-End report, from sometime in fall 2009.
DD: NSA’s Pen Register Trap and Trace FISA Review Report: The end-to-end report itself. it was provided to Congress in January 2010.
EE: DOJ Report to the FISC NSA’s Program to Collect Metadata: DOJ’s accompaniment to the end-to-end report.
FF: Government’s First Letter to Judge Bates to Confirm Understanding of Issues Relating to the FISC’s Authorization to Collect Metadata: After Bates raauthorized the Internet dragnet, DOJ realized they might not be on the same page as him. Not sure if this was in the 2009 attempt or the 2010 reauthorization.
HH: Tab 1 Declaration of NSA Chief, Special Oversight and Processing, Oversight and Compliance, Signals Intelligence: This appears to be the 90-day report referenced in document C. Update: Actually it is referenced in Document A: note the paragraphs describing the chaining that were discontinued before the dragnet approval.
II: Verified Memorandum of Law in Response to FISC Supplemental Order: This is one of the most fascinating documents of all. It’s a 2009-2011 (I think August 17, 2009, though the date stamp is unclear) document pertaining to 3 PRTT targets, relying on criminal PRTT law and a 2006 memo that might be NSA’s RAS memo (though the order itself is FBI, which makes me wonder whether it seeds the FBI program). It may have been what they used to claim that Internet content counted as metadata.
JJ: Memorandum of Law in Response to FISC Order: A September 25, 2006 response to questions from the FISC, apparently regarding whether rules from criminal pen registers apply to PATRIOT PRTT. While I think this addresses the application to Internet, I also think this language may be being used for location.
KK: Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: This is a request to unseal an order — I suspect document E — so it could be briefed to Congress.
LL: Order Granting the Government’s Motion to Unseal FISC Documents in Order to Brief Congressional Intelligence and Judiciary Committees: Walton’s order to unseal KK for briefing purposes.
MM: April 27, 2005 Testimony of the Attorney General and Director, FBI Before the Senate Select Committee on Intelligence: This is the 2005 testimony in which — I pointed out before — Alberto Gonzales did not brief Congress about the Internet dragnet.
NN: NSA IG Memo Announcing its Audit of NSA’s Controls to Comply with the FISA Court’s Order Regarding Pen Register/Trap and Trace Devices: This lays out an audit with PRTT compliance, noting that the audit also pertains to BR FISA (phone dragnet). It admits the audit was shut down when the order was not renewed. It’s unclear whether this was the 2009 or the 2011 shutdown, but the implication is it got shut down because it would not pass audit.
OO: NSA IG Memo Suspending its Audit of NSA after the NSA’s PRTT Metadata Program Expired: the formal announcement they were shutting down the IG report. Again, it’s not clear whether this was the 2009 or the 2011 shutdown.
If you find this work valuable, please consider donating to support the work.