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DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere

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Screen Shot 2014-04-18 at 11.02.49 AMAs I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.

Of particular interest is this investigation.

Administrative Subpoenas

The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.

The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.

Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.

Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.

Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

[snip]

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.

But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.

After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Read more →

Surprise! DOJ IG’s 1,403 Day Old Section 215 Investigation Had a Baby!

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As longtime readers know, I have long tracked a DOJ Inspector General investigation into FBI’s use of Section 215 and other PATRIOT Act authorities.

  • June 2010: Then DOJ IG Glenn Fine lays out investigation
  • June 2013: Transition to Michael Horowitz stalls PATRIOT investigation
  • August 2013: The investigation has been ongoing
  • September 2013: Pat Leahy calls for an IC IG investigation into 215 and 702; IC IG Charles McCullough declines
  • December 2013: Horowitz states current investigation limited by AG/DNI declassification of earlier reports

A good healthy obsession!

Since it’s been a while — the investigation is now 1,403 days old — yesterday I decided to nag the IG office.

They were mum on when we might finally see the report. Instead of offering details, they directed me to their new (apparently brand spanking new) “in the interest of transparency” page on their ongoing work.

It shows the long-promised report, still focusing on Section 215 use through 2009, as well as NSLs and pen register.

Use of National Security Letters, Section 215 Orders, and Pen Register and Trap-and-Trace Authorities under FISA from 2007 through 2009

The OIG is again examining the FBI’s use of NSLs and Section 215 orders for business records. This review is assessing the FBI’s progress in responding to the OIG’s recommendations in its first and second reports on the FBI’s use of NSLs and its report on the FBI’s improper use of exigent letters and other informal means to obtain telephone records. A focus of this review is the NSL subsystem, an automated workflow system for NSLs that all FBI field offices and headquarters divisions have been required to use since January 1, 2008, and the effectiveness of the subsystem in reducing or eliminating noncompliance with applicable authorities. The current review is also examining the number of NSLs issued and Section 215 applications filed by the FBI between 2007 and 2009, and any improper or illegal uses of these authorities. In addition, the review is examining the FBI’s use of its pen register and trap-and-trace authority under FISA.

But it also shows a report not mentioned in Michael Horowitz’ last report.

A report on the dragnet.

Bulk Telephony Review

The OIG is reviewing the FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act. The review will examine the FBI’s procedures for receiving, processing, and disseminating leads the NSA develops from the metadata, and any changes that have been made to these procedures over time. The review will also examine how FBI field offices respond to leads, and the scope and type of information field offices collect as a result of any investigative activity that is initiated. In addition, the review will examine the role the leads have had in FBI counterterrorism efforts.

In truth, this investigation may not be all that distinct from the known PATRIOT authorities investigation. The minimization procedures for both — and therefore the way the information gets used, an issue central to both investigations — appear to be the same. And to the extent that the number of 215 orders with minimization procedures has been growing since 2010 indicates the FBI is collecting other information in bulk, the programs may well interrelate.

At first, I thought that this investigation, with the very significant exception of the way the dragnet serves to identify informants, might not reveal anything that problematic. Upon review, I’m not so sure. I’ll explain why in a follow-up report.

The one big difference between the two investigations, however (and I’ll discuss this at more length in the follow-up), is that dragnet investigation, unlike the PATRIOT Authority one, appears not to be time delimited. Whereas the older investigation only looks at practices through 2009, the dragnet investigation appears to be examining on-going practices. It seems to be investigating all the 215-related issues identified by Pat Leahy that the IC IG should investigate that come under DOJ’s jurisdiction.

So bad news good news! DOJ is still, 1,403 days later, investigating how the FBI used PATRIOT Act authorities 5 years ago, meaning more recent developments are not getting much attention.

But there is a potentially related investigation looking at what the FBI ingests from the phone dragnet (at least the small part relating to Section 215) right now.

The DOJ Inspector General’s Difficulties Getting Grand Jury Information

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I’m about to do a series of posts on several investigations of DOJ’s Inspector General, Michael Horowitz.

Before I do that, however, I want to call attention to Horowitz’ recent complaints — most notably at a Senate Appropriations Hearing on April 3 — about limits on his ability to get grand jury information.

In the exchange above, Senator Richard Shelby asked Horowitz about the problem.

Shelby: Do you believe that you, the Inspector General of the Department of Justice, should have to seek approval of the Attorney General to access grand jury documents or any documents relevant to ongoing investigations?

Horowitz: I don’t, Senator. It’s inconsistent in my view with the–

Shelby: With your mandate, is it?

Horowitz: Correct–

Shelby: Because even though it’s the Justice Department, but it could be any department, if you have to go to the head of the department — the Secretary — for example, cabinet level position to approve what you’re seeking, it seems that could be, under dire circumstances, an impediment to doing your job.

Horowitz: Well, and ultimately, that’s correct, and ultimately, the letters that we’ve gotten from the Attorney General and Deputy Attorney General giving us access have focused on finding that the review was important to their oversight of the department. The Act sets it up such a way that oversight decisions should be made by Inspectors General not by the Secretaries or cabinet heads.

Horowitz had described the problem in his testimony to the Senate Appropriations Committee as well (and he mentioned Fast & Furious, to be sure to get Republicans to take notice).

However, there have been occasions when our office has had issues arise with timely access to certain records due to the Department’s view that access was limited by other laws. For example, issues arose in the course of our review of Operation Fast and Furious regarding access to grand jury and wiretap information that was directly relevant to our review. Similar issues arose during our ongoing review of the Department’s use of Material Witness Warrants. Ultimately, in each instance, the Attorney General or the Deputy Attorney General provided the OIG with permission to receive the materials because they concluded that the two reviews were of assistance to them. The Attorney General and Deputy Attorney General have also made it clear that they will continue to provide the OIG with the necessary authorizations to enable us to obtain records in future reviews, which we of course appreciate. However, requiring an Inspector General to rely on permission from Department leadership in order to review critical documents in the Department’s possession impairs the Inspector General’s independence and conflicts with the core principles of the Inspector General Act.

We have had similar issues raised regarding our access to some other categories of documents.

And the issue came up when Holder testified to the House Judiciary Committee the following week (as I said, mentioning Fast & Furious is like catnip for Republicans).

Horowitz sure seems intent on drawing immediate attention to this issue, which I agree is pretty significant.

As I will show, Horowitz is currently conducting at least two investigations that will or already do require fairly broad access to grand jury investigations. I wouldn’t be surprised if the two things were connected.

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

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On Thursday, the Inspectors General of the Intelligence Community, DOJ, CIA, and DHS (but not NSA) released their report on the Marathon Bombing. While the public release was just a very condensed summary, included the redaction of both classified and “sensitive” information, and made no attempt to reconstruct data government agencies had or could have had on Dzhokhar Tsarnaev, the report did show that the NSA had data on Tamerlan Tsarnaev and that the FBI found information on his computers that NSA might have gotten via other means.

On Friday, prosecutors in the case against Dzhokhar refused to tell him what they collected under FISA.

Before I get into the government’s refusal on FISA notice — some of which has repercussions for other cases — let’s go over what electronic communications the government did have or could have had.

First, the IG Report (which did not specifically involve NSA’s IG and did not include Dzhokhar in its scope) nevertheless points to information NSA collected in 2012 that was not turned over to FBI until after the attack.

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The report also points to communications dating to January 2011, which is entirely redacted. This probably refers to communications the Russians intercepted, not the NSA (indeed, the report discusses NSA data, above, later in the same section, which indicates the earlier redaction doesn’t pertain to NSA). Though there’s no indication whether the NSA received notice of these communications, including the non-US person interlocutor located overseas involved in them, who would have been a legal NSA target.

Read more →

Working Thread on the Combined Marathon IG Report

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I started reading the Combined IG Report on the Marathon attack (including the DOJ, CIA, DHS, and Intelligence Community IGs, but not NSA). And the whole thing looked so bogus from the start, I figured a working thread was in order.

One thing to remember here: we’ve only got a 32-page summary that includes 5 pages of agency (but not CIA) response and a title page. We’re getting a mere fraction of the 168-page report.

To make things worse, some things are redacted that aren’t even classified, they’re just sensitive.

Redactions in this document are the result of classification and sensitivity designations we received from agencies and departments that provided information to the OIGs for this review. As to several of these classification and sensitivity designations, the OIGs disagreed with the bases asserted. We are requesting that the relevant entities reconsider those designations so that we can unredact those portions and make this information available to the public.

(PDF 2) Several things in this passage:

Law enforcement officials identified brothers Tamerlan and Dzhokhar Tsarnaev as primary suspects in the bombings. After an extensive search for the then unidentified suspects, law enforcement officials encountered Tamerlan and Dzhokhar Tsarnaev in Watertown, Massachusetts. Tamerlan Tsarnaev was shot during the encounter and was pronounced dead shortly thereafter.

First, they don’t say what law enforcement officials IDed the brothers. That sentence precedes one which claims there were “unidentified suspects,” which suggests they had suspicions before they were “IDed.” The word “encountered” is awfully suspicious, given that explanations of how the shootout in Watertown happened have been contradictory. And note they don’t say whether Tamerlan died immediately or not–again, an issue about which there’s some contention.

(PDF 2) Note they tell us Anzor’s ethnicity, but not his wife’s (who is more central to this narrative)?

(PDF 2) The report dodges legitimate questions about why the family got refugee status by referring only to “an immigration benefit.” Given reports the uncle had ties to the CIA, that benefit may be more than a simple asylum request.

(PDF 3) Note that, after having previously said the brothers were ID’ed by LE, they now specify FBI [Actually, I think that’s wrong: this is still ambiguous about who IDed them]. But the timing is crazy: it says FBI reviewed its records by April 19, but never says when they were IDed, and doesn’t say whether they were reviewed during a period of suspicion.

By April 19, 2013, after the Tsarnaev brothers were identified as suspects in the bombings, the FBI reviewed its records and determined that in early 2011 it had received lead information from the FSB about Tamerlan Tsarnaev, had conducted an assessment of him, and had closed the assessment after finding no link or “nexus” to terrorism.

(PDF 4) This seems very broad. I wonder what they’re including? Online communications?

As a result, the scope of this review included not only information that was in the possession of the U.S. government prior to the bombings, but also information that existed during that time and that the federal government reasonably could have been expected to have known before the bombings.

(PDF 4) This passage and footnote are huge dodges, making the entire report meaningless.

We carefully tailored our requests for information and interviews to focus on information available before the bombings and, where appropriate, coordinated with the U.S. Attorney’s Office conducting the prosecution of alleged bomber Dzhokhar Tsarnaev.1

1 The initial lead information from the FSB in March 2011 focused on Tamerlan Tsarnaev, and to a lesser extent his mother Zubeidat Tsarnaeva. Accordingly, the FBI and other agencies did not investigate Dzhokhar Tsarnaev’s possible nexus to terrorism before the bombings, and the OIGs did not review what if any investigative steps could have been taken with respect to Dzhokhar Tsarnaev.

I’ll come back to this. But the indictment lists a number of things that the FBI, in their stings, have found and used to identify easy marks. They did not do so here, with Dzhokhar. Which raises real questions about why they chose not to pursue him when they’ve pursued so many other young men like Dzhokhar?

(PDF 4) Here’s who was included in this review:

We also requested other federal agencies to identify relevant information they may have had prior to the bombings. These agencies included the Department of Defense (including the National Security Agency (NSA)), Department of State, Department of the Treasury, Department of Energy, and the Drug Enforcement Administration.

There has been little discussion of DEA’s likely awareness of the brothers, but it is likely, given that they were dealing drugs with potential ties to organized crime. And NSA, but I harp on that too much. I’m curious what role DOE might have.

(PDF 4) Again, they specify they’re only looking at pre-attack data. Which dodges what they could have collected but didn’t.

Additionally, each OIG conducted or directed its component agencies to conduct database searches to identify relevant pre-bombing information.

(PDF 4-5) As with HHSC’s report, the FBI stalled here.

As described in more detail in the classified report, the DOJ OIG’s access to certain information was significantly delayed at the outset of the review by disagreements with FBI officials over whether certain requests fell outside the scope of the review or could cause harm to the criminal investigation. Only after many months of discussions were these issues resolved, and time that otherwise could have been devoted to completing this review was instead spent on resolving these matters.

(PDF 5) The 12333 passage makes it clear NSA had a big role here. But, again, its IG did not conduct an investigation.

(PDF 6-7) The CIA section is very thin. I assume some stuff is missing.

(PDF 8) Note the importance of NSA’s sharing with FBI here?

Of particular relevance to this review are the relationships between the FBI, CIA, and DHS, as well as the relationship between the FBI and the NSA, and the NCTC’s relationships throughout the Intelligence Community.

(PDF 8) This makes clear that the transcription and birthdate errors were in both FSB warnings; it’s just that CIA didn’t fix the second one.

Importantly, the memorandum included two incorrect dates of birth (October 21, 1987 or 1988) for Tamerlan Tsarnaev, and the English translation used by the FBI transliterated their last names as Tsarnayev and Tsarnayeva, respectively.

(PDF 10) This passage seems to admit that FBI could have, but did not, search FISA related databases. It also suggests there was a “certain telephone database,” which might include the Hemisphere database, which performs the same function as the NSA claims (falsely) the phone dragnet does. Note, too, that they’ve only checked for the Tsarnaevs in FBI databases. I’ll come back to these databases in a later post.

Additionally, the DOJ OIG determined that the CT Agent did not use every relevant search term known or available at the time to query the FBI systems, including certain telephone databases and databases that include information collected under authority of the Foreign Intelligence Surveillance Act (FISA). However, searches of FBI databases conducted at the direction of the DOJ OIG during this review produced little information beyond that identified by the CT Agent during the assessment, with the exception of additional travel-related data for Zubeidat Tsarnaeva.

(PDF 11) Note that the second FBI letter to FSB, dated October 7, 2011, postdated the FSB notice to CIA. But it also comes at a time when Boston area law enforcement were conducting an investigation into the murder of Tamerlan’s best friend. The Waltham murders are not mentioned at all in the unclassified report.

(PDF 12) The IG Report does not tell us the date in September when FSB provided notice to CIA. Given that Tamerlan may have just been or was about to be involved in a grisly murder, I find that omission very notable.

(PDF 12) Note you can be watchlisted without derogatory information. This seems to be because of the exception mentioned in FN 10. But fat lot of good it did in this case. Per the footnote, that exception subsequently got disqualified, though I bet it has been qualified again.

(PDF 12) The IG Report doesn’t even acknowledge there was some other kind of difference between the first and the later watchlist entries as indicated on pp 33-4 of the HHSAC Committee report, which suggests that discussion may be redacted entirely.

(PDF 16) Note that, as happens with all Legal Permanent Residents, Tamerlan was photographed (and fingerprinted) during immigration. I’m surprised there isn’t more discussion of this (though it may be classified). But one big point of this relatively new border protocol is to have recent pictures on hand in case, say, you need to do facial recognition on pictures from a terrorist attack. Were they used?

(PDF 19) Note the big redaction describing intercepted communications. This may simply describe what the Russians had collected, which led to their tip. But I do wonder whether NSA collected its own version, not least because details of the Russian intercept has been widely reported.

(PDF 20) Note that the discussion of Tamerlan’s (remember, Dzhokhar is not included here) computer materials is described solely in terms of what FBI could do. That’s different from what both DHS does (they track public online speech) and NSA. It’s unclear whether they could have found some of this using methods available to them, but the report’s silence on that point is notable.

The FBI’s analysis was based in part on other government agency information showing that Tsarnaev created a YouTube account on August 17, 2012, and began posting the first of several jihadi-themed videos in approximately October 2012. The FBI’s analysis was based in part on open source research and analysis conducted by other U.S. government agencies shortly after the bombings showing that Tsarnaev’s YouTube account was created with the profile name “Tamerlan Tsarnaev.”

[snip]

The DOJ OIG concluded that because another government agency was able to locate Tsarnaev’s YouTube account through open source research shortly after the bombings, the FBI likely would have been able to locate this information through open source research between February 12 and April 15, 2013. The DOJ OIG could not determine whether open source queries prior to that date would have revealed Tsarnaev to be the individual who posted this material.

The passage goes on to report the 7 copies of Inspire on one of the computers used by Tamerlan (again, there’s no mention of Dzhokhar here).

Something they’re not saying, but we know to be true.  Had they picked up Inspire either through a 702 upstream search or XKeyscore, they would have had identifiers that could have pegged Tsarnaev’s identity and tied it to all his other identities, regardless of the fact Tamerlan used an alias until February 2013.

And note the big redaction: NSA had information that dated to 2012, which may well have been the intercepts with Plotnikov.

Finally, note that FBI never turned over most of the information about Tamerlan’s Google accounts. The excuse (as noted above) was the ongoing investigation. But I wonder whether that’s ongoing investigation into the Waltham murder or the Marathon attack.

(PDF 25) Note the discussion of enhancement in the 2nd-to-last bullet. I believe this suggests that transliteration questions are only addressed with this enhancement.

(PDF 25) Note that they at least used to delete US person travel info after 6 months unless it represents terrorism information. This would arise from NCTC’s minimization procedures.

(PDF 32) As noted above, we don’t get John Brennan’s response to this, though he presumably sent one. I suspect that means there are classified recommendations for the Agency and that his response reflects that. While it’s not clear what the foreign target would be in this context (perhaps an investigation of the person to whom Zubeidat was speaking about Tamerlan wanting to join jihad?) but there seems to have been some.

Newly-Released Dragnet Order Suggests Spike in 215 Orders May Include Financial Records

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I Con the Record reissued less classified versions of two Section 215 orders: the March 2, 2009 one that sharply restricted the phone dragnet without much new declassified, and the June 22, 2009 one that dealt, in part, with FBI and CIA access to the data in both the Internet and phone dragnet, showing both those parts unclassified in the same order (previously the government had released two separate versions — phone, Internet — with different things declassified).

The only new document was a November 23, 2010 order, modeled closely on a December 12, 2008 one. The earlier one had judged that the Stored Communication Act’s limits on collection did not preclude the use of Section 215 to collect phone records. This one judged that the Right to Financial Privacy Act did not preclude the use of Section 215 to collect financial records. Both opinions basically find that because those laws permit the use of National Security Letters to obtain such records without judicial review, clearly it’s okay to obtain the same records with judicial review under Section 215.

Of course, we know that in the phone context — and so presumably also in the financial records context — the use of Section 215 also entailed bulk, potentially comprehensive collection. While some bulk collection occurred under NSLs, especially for phone records (we know that because that’s the only category of NSL that doesn’t get accounted individually in public records), and while we assume bulk collection occurred under Bush’s illegal program via other means, moving a new kind of record under Section 215 may represent the institutionalization of bulk collections of another type of document.

Aside from revealing that this order pertained to financial records, we don’t know much about the underlying order. The order says the records were provided to the FBI (though WSJ and NYT reported CIA used Section 215 to get money order records). It uses “financial records” in scare quotes, so it is possible it is something beyond just bank records. And the fact that it was stamped by John Bates (then the presiding judge) suggests it may have been regarded as rather significant.

All that said, this opinion doesn’t necessarily mark November 2010 as the date the government started using Section 215 to collect (presumably bulk) financial records. After all, the government collected phone records for over 2 years before answering the seemingly obvious question of whether doing so violated other laws. I suspect they did so in 2008 in response to questions then DOJ Inspector General Glenn Fine kept raising about Section 215. And it is perhaps instructive that Fine was, in November 2010, working on a new Section 215 review, one that has since been delayed, in part by ODNI and DOJ refusal to declassify a number of documents, for 1,371 days.

Perhaps it’s just a remarkable coinkydink, but Fine resigned 6 days after this FISC ruling was issued.

Two more details about this. First, as I have shown, DOJ appears to have been hiding details about Section 215 from Congress during this period, though the only financial records they would have been obliged to disclose were tax records.

In addition, the number Section 215 orders started going up drastically in 2010, along with the number of orders the FISC modified to require minimization procedures.

Nevertheless, the reports show us two new things.

Screen shot 2013-11-22 at 8.52.29 AM

First, while we knew the number of modifications has gone up significantly in the last three years (we now know that many of the modifications in 2009 had to do with phone dragnet violations), the latest reports ODNI released say this:

The FISC modified the proposed orders submitted with forty-three such applications in 2010 (primarily requiring the Government to submit reports describing implementation of applicable minimization procedures).

The FISC modified the proposed orders submitted with 176 such applications in 2011 (requiring the Government to submit reports describing implementation of applicable minimization procedures).

I’ve suggested that 176 modified applications may suggest the government has as many as 44 bulk collection programs, which would be renewed every three months  (or, alternately, a whole lot more specific bulk collection orders).

That is, this rise in what are almost certainly bulk collection orders came around the same time as FISC “Bates-stamped” the collection of financial records with Section 215.

Finally, consider one more thing. Last year, 26 Senators raised concerns about credit card records; last week’s RuppRoge House Intelligence Committee dragnet fix doesn’t prohibit the bulk collection of credit card records (their list, I now realize, is based off the list of sensitive records currently written into Section 215). Credit card records are covered under FRPA.

So while it would be a wildarsed guess, it would not be unreasonable to guess that some of this spike in bulk collection involved credit card records, approved by this November 2010 opinion.

Any bets we’ll finally get that DOJ IG Report on Section 215, showing that’s what they’ve been doing?

What Was the Purpose of the Exigent Letter Program?

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I’m aiming to have some rough guesses about what kind of bulk collection the FBI might use National Security Letters for (spoiler alert: my wildarseguess is that they’re getting subscriber lists from the same telecoms they’re getting phone dragnet data from).

But first, I want to return to the exigent letter program and consider how it may have complemented the dragnet during the period the dragnet had no court sanction.

As a reminder, starting in 2002, the FBI started getting phone calling records on individual users directly from telecoms using “exigent letters” — basically letters saying they needed the records urgently and promising some kind of legal documentation in the future. In 2003, representatives of the telecoms started moving onsite, so FBI Agents could ask for this information while looking over the representatives’ shoulders. As part of it, the FBI got “community of interest” data (basically, the 3-degrees information the phone dragnet provides) and “hot number” data (an alert when a number was used, which also became part of the phone dragnet). The program spun out of control because FBI often would never go back and provide that paperwork (and also they used it for improper purposes).

In 2006, at the same time the the phone dragnet from the illegal wiretap program was moving to Section 215 orders, FBI was trying to clean up the exigent letter problems with “blanket National Security Letters.” FBI issued the first blanket NSL on May 12, 2006; FISC approved the first Section 215 order on May 24. And while it took until January 2008 for the last telecom personnel to move out of FBI digs, FBI started phasing out the program by imposing new restrictions in 2006.

There’s a lot we don’t know yet about the exigent letters program — and the actions of those telecom personnel camping out at the FBI. That the 2010 IG Report on was produced in TS/SCI, classified, and unclassified versions (the other two NSL IG Reports (2007, 2008) came in classified and unclassified versions) suggests it had some tie to more sensitive counterterrorism programs, quite likely the illegal program.

And to some degree, the onsite telecom personnel were duplicating what we understand NSA to have been doing with phone call records in the illegal wiretap program: tracking activity and establishing 3-degree-of-separation maps around phone identifiers of interest. At least for those FBI Agents who knew of the illegal dragnet, they could get the same information from the NSA, though for FBI Agents it was likely more immediate to go directly to the telecom person and provide requests on post-it notes (as sometimes occurred). Moreover, the FBI could and did quickly check whether queries would be fruitful before they formally queried a number. That means they could use the telecom presence to run contact-chaining on people who were not yet formally identified as terrorist suspects (though that seems to have been possible with the NSA program at that point too).

But the duplicative nature of the program suggests the possibility (particularly given that it started in earnest in May 2003, after the illegal program had gotten started) that the telecom presence was used to launder results back through the telecoms to make them usable for both FISC and other Title III Courts.

One more thing of interest, given my spoiler alert. As far as I understand, the FBI would have access not just to a number’s community of interest, but also to the name of a phone subscriber (or, alternately, immediately be able to learn if a telecom served a particularly person or number). That is, the onsite telecom program provided the FBI with something that the current dragnet, as publicly understood, did not: easy access to contact-chaining, with identities attached.

As I have noted before, DOJ’s Inspector General has said he may be limited in what he presents in his 1,297-day old study of the use of Section 215 through 2009, started under his predecessor (who authored all the other reports), Glenn Fine, unless DOJ will declassify the earlier NSL and Section 215 reports. So there’s clearly a tie between what was done with Section 215 as it moved under FISC review and what had been done earlier with NSLs.

One thing I’m wondering about is whether FBI uses(d) NSLs to accomplish the parts of the previous programs that haven’t been authorized under the use of Section 215.

DOJ’s IG Hints at Concerns about Back Door Search Issues

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In addition to focusing on whether the classification of past IG Reports will limit what he can release about the Section 215 dragnet and Section 702 content collection, DOJ Inspector General Michael Horowitz laid out one more significant civil liberties concern related to national security investigations.

Additional concerns about civil rights and liberties are likely to arise in the future. For example, significant public attention has been paid to programs authorizing the acquisition of national security information, but relatively less has been paid to the storing, handling, and use of that information. Yet after information has been lawfully collected for one investigation, crucial questions arise about whether and how that information may be stored, shared, and used in support of subsequent investigations. Similar questions arise about the impact on civil rights and liberties of conducting electronic searches of national security information and about whether and how information obtained in a national security context can be used for criminal law enforcement. As the Department continues to acquire, store, and use national security information, these issues will arise more and more frequently, and the Department must ensure that civil rights and liberties are not transgressed.

I don’t guarantee this is a reference to back door searches.

But we know that FBI has been permitted to conduct searches on content collected under traditional FISA or FISA Amendments Act since at least 2008. We know that the Intelligence Community does not believe it needs even Reasonable Articulable Suspicion — of a national security concern or of a crime — to search this data. And in the past, DOJ has argued it can use FISA-collected information to find things like evidence of rape to use to coerce people to turn informant.

So I’m going to wildarseguess that at least part of what Horowitz alludes to here pertains to whether DOJ can search this incidentally collected information in support of criminal investigations. That would of course violate the spirit of every wiretap law in the country, but given the government’s past interpretations of what the elimination of the wall between NSA and FBI means and their claims they don’t need RAS to search these databases, it is a real possibility that’s what they doing (though they may be claiming that the crimes in question are “related” to the national security claims — things like money laundering and drug sales and so forth).

I’m also interested in Horowitz’ allusion to “national security information.” Does this go beyond content? Is he worried about the use of bulk-collected data in criminal investigations?

OK, now he’s got me worried.

But note what he doesn’t say: that he’s investigating this.

Will DOJ’s 1,265-Day Old Section 215 Review Be Squelched By Past Classifications?

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DOJ’s Inspector General Michael Horowitz released his annual list of challenges today (which includes a focus on prison problems). In his section on national security and civil liberties he spends 4 paragraphs calling for more information sharing before he turns to civil liberties. In that section, he once again promises the report on the use of Section 215 his office has been working on for 1,265 days.

But he adds something new. He suggests this report may be limited by whether or not DOJ and ODNI declassify sections of the past reports.

The OIG’s ongoing reviews also include our third review of the Department’s requests for business records under Section 215 of the Foreign Intelligence Surveillance Act (FISA), as well as our first review of the Department’s use of pen register and trap-and-trace devices under FISA.  Although the full versions of our prior reports on NSLs and Section 215 all remain classified, we have released unclassified versions of these reports, and we have requested that the Department and the Office of the Director of National Intelligence (ODNI) conduct declassification reviews of the full classified versions.  The results of any declassification review may also affect how much information we will be able to publish regarding our pending reviews when they are complete.

As I have noted in the past, the 2008 report includes two appendices on then-secret uses of Section 215, one of which almost certainly pertains to the phone dragnet. In addition, it includes a sharply critical section on DOJ’s failure to institute new minimization procedures specific to Section 215 (which would dramatically affect its use for the phone dragnet).

Now Horowitz is saying that, unless DOJ and ODNI declassify these past reports, he won’t be able to present in unclassified form all the findings in his current report (which covers the period through 2009, and therefore the violations discovered in that year).

Horowitz suggests something similar is going on with DOJ IG’s work on content collection as well. Both a report he did last year on the FISA Amendments Act (which may suggest the FBI has not always abided by its targeting and minimization procedures) and Glenn Fine’s DOJ-specific review on the illegal wiretap program remain classified.

The OIG has also conducted oversight of other programs designed to acquire national security and foreign intelligence information, including the FBI’s use of Section 702 of the FISA Amendments Act (FAA), which authorizes the targeting of non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence information.  The OIG’s 2012 review culminated in a classified report released to the Department and to Congress that assessed, among other things, the number of disseminated FBI intelligence reports containing a reference to a U.S. person identity and the FBI’s compliance with the targeting and minimization procedures required under the FAA.  Especially in light of the fact that Congress reauthorized the FAA for another 5 years last session, we believe the findings and recommendations in our report will be of continuing benefit to the Department as it seeks to ensure the responsible use of this foreign intelligence tool.  This report also was included in our request to the Department and ODNI for a declassification review, as was the full, classified version of our 2009 report on the President’s Surveillance Program, which described certain intelligence-gathering activities that took place prior to the enactment of the FAA. [my emphasis]

Elsewhere, Horowitz alludes to the Snowden leaks. Clearly, much of what appears in the 2009 and 2012 reports has been covered in leaks and releases to Congress. And yet, it seems, someone is stalling the declassification of DOJ IG’s work.

What has DOJ’s IG found that Eric Holder and James Clapper are trying to hide?

The FBI’s Official “CAIR Has Cooties Guidance Directive [Redacted]”

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I had just about come to the conclusion that Michael Horowitz, DOJ’s Inspector General who took over after Glenn Fine retired in 2010, was a worthy successor. In recent weeks, Horowitz has released reports critical of DOJ’s handling of classified information, its refusal to account for drones’ unique risks to privacy, and the Bureau of Alcohol, Tobacco, and Firearms’ use of “churning” (money-making) operations.

But then I read this report — on the FBI’s Interactions with the Council on American-Islamic Relations — and I got literally sick to my stomach.

The report purports to determine whether the FBI complies with Agency guidance — the title and issuing authority for which are redacted in the report, which is why I am referring to it as the “Cooties Guidance Directive [Redacted]” throughout, even where it is redacted in direct quotes — that FBI personnel are not to engage in any community outreach with people from CAIR. For results, it shows that in three of five cases where FBI personnel did engage (or almost engage!) with people from CAIR, the personnel either didn’t consult with the FBI entity the IG deems to be in charge of this policy (which is probably the Counterterrorism Division, but the IG Report redacts that too), or consulted instead with the Office of Public Affairs, which is in charge of community outreach.

In response to these shocking (!!) results, Congressman Frank Wolf has already called for heads to roll.

But what the report actually shows is, first of all, how in response to two non-criminal pieces of evidence — a meeting between men who would go on to found CAIR and Hamas, which was not yet a designated a terrorist organization, and CAIR’s designation as an unindicted co-conspirator in the Holy Land Foundation case (the publication of which was subsequently deemed a violation of the group’s Fifth Amendment rights) — the FBI formulated a formal policy to treat that organization as if it has cooties.

And yet, even the language the IG repeats about this policy makes it clear that the FBI was operating on a policy of “guilty until proven innocent.”

The guidance specifically stated that, until the FBI could determine whether there continued to be a connection between CAIR or its executives and Hamas, “the FBI does not view CAIR as an appropriate liaison partner” for non-investigative activities.

That is, for the entire 5 year period versions of this policy have been in place, FBI has maintained that so long as it doesn’t develop evidence that CAIR has no ties to Hamas, then FBI will treat the organization and its officials as if they do have such ties by refusing to let them on FBI property or attend any CAIR-affiliated events. And we’re supposed to believe, I guess, that the FBI has used not a single one of their intrusive investigative methods to try to prove or disprove this allegation in the interim 5 years, and so it just will never know whether the allegation is correct or not, and so must operate on the playground Cooties standard.

Heck, in one of the “incidents” the report investigates, the local FBI office actually vetted an event participant to make sure his service on CAIR’s local board didn’t taint all his other community ties so badly that he should not participate in the event.

Yet whether or not a particular CAIR representative [redacted] is irrelevant to the Cooties Guidance Directive  [Redacted] to deny the organization access to the FBI in such non-investigative community-outreach activities.

And the IG Report — Michael Horowitz’ report — judges that vetting that found this gentleman to be innocent was not sufficient reason to ignore the Cooties Guidance Directive [Redacted]. The Report seems to endorse the view that vetting notwithstanding, this guy had a formal role in CAIR that made all his other roles in the Muslim community suspect and that’s the way things work in America.

Then there’s the underlying logic. The entire policy is premised on a bizarre belief that it is exploitative for a Muslim organization to advertise its willingness to work with the FBI.

The June 2011 EC also reiterated that CAIR was not prohibited from “maintaining a relationship with the FBI regarding civil rights or criminal violations; however, civil rights and criminal squads should be cognizant CAIR has exploited these relationships in the past.”

[snip]

The end result of this incident- CAIR posting on its website of a photograph showing the SAC speaking at the event and a description of CAIR’s Civil Rights Director moderating his speech is the sort of exploitation of contact with the FBI that the Cooties Guidance
Directive [Redacted] was intended to avoid.

I don’t get it. If CAIR really were a terrorist sleeper cell, wouldn’t advertising their willingness to associate with the FBI completely ruin all their terrorist Cred, and therefore neutralize whatever threat they presented?

In any case, on the one hand, the report chronicles how the federal agency in charge of investigating civil rights abuses basically treated an entire constitutionally protected civil rights organization as guilty without charging it with any crime.

But then there’s the fact that, after responding to a request to fear-mongers in Congress, this report saw the light of day in the fashion it appears.

As noted above, the IG Report seems to accept this premise of guilty until proven innocent without noting the problem underlying it. Like, you know, the Constitution. In places, the language of the report even echos that of a presumption of guilt, as in this passage where it berates OPA for actually treating an individual with multiple formal ties to the Muslim community as such, rather than as someone branded solely by his affiliation with CAIR.

It appears that OPA provided guidance that effectively reversed the presumption against CAIR participation in non-investigatory FBI activities in this instance. OPA indicated that it wanted to ensure that there was sufficient justification for excluding the CAIR participant apart from his role in CAIR.

Then there’s the way in which this was released. While the actual Cooties Guidance  Directive [Redacted] is classified, nothing else in the report seems like it should be (though the FBI has removed the classification marks from the paragraphs to hide the basis for their claims that this is classified). In particular, FBI or DOJ or OIG has chosen to redact anything that would make it clear whether this is an actual policy, or just guidance on which CTD and OPA disagree (in their complaint about the report, the ACLU notes that it doesn’t appear to have gone through the formal policy-making process). And yet, having hidden that information, the IG presents it as if the failure to implement the Cooties Guidance Directive [Redacted] is a graver problem than the upending of presumption of innocence.

Finally, there are a few tonal issues. For example, the report presents this view — from a Chicago SAC who twice blew off the Cootie Guidance Directive [Redacted] — as if his basic civility presents a problem.

He stated that if DHS considered CAIR officials to be part of the community and invited them to the Roundtable, the FBI was not going to deny them entry at the door.

In another instance, it quotes another violating SAC as using the term “Islamophobia” (PDF 22), but presents the term in scare quotes. This is borderline McCarthyist shit, treating the language of people fighting terrorists by treating Muslims as human beings as some kind of brand against them.

Finally, there’s the timing of this. The fear-mongers requested this report in March 2012 — over 20 months after after the Section 215 IG Report that we’ve been waiting for for 1,224 days got started. Three of four of what are probably interviews with those deemed in violation of this guidance took place over the course of 8 days in August and September of 2012 (the last took place in July, which makes me wonder whether that was added to beef up an otherwise thin report.)

But then the report didn’t get released until a second state CAIR affiliate starts challenging the FBI’s killing of a Muslim person. And the IG Report got released on the very same day that CAIR released a major report on Islamophobia (or, as the IG appears to treat it, “Islamophobia.”)

The whole thing seems designed not to make the FBI a more orderly place (if that were the purpose, then it might be better to focus on how the Cooties Guidance Directive
[Redacted] became formal policy — if it did — without going through formal policy channels). Rather, it seems designed to foment a kind of McCarthyism within FBI targeted at those counterterrorism investigators who believe the best way to fight Islamic extremists is to treat Muslims as partners in rooting out violence.