FreedomWorks Challenges the Transitional Dragnet

On Friday, FreedomWorks and Ken Cuccinelli challenged the phone dragnet.

The challenge is a basic legal challenge, not a technical one arising from the lapse of the dragnet. It is smarter than others I’ve read because it recognizes the dragnet is about backbone usage, not specific provider. It also has more language on contracting than other challenges I’ve read closely (though I haven’t read Rand Paul’s, and I expect that language was in his challenge).

But as I said, there’s nothing I saw in the challenge that questions how USA F-ReDux can simply extend Section 215 when that provision had already lapsed.

At the very least, because of this challenge, we’ll get to see what the government argued about that lapse. That’s because Michael Mosman (who signed the December dragnet order, but was also remarkably willing to review a challenge to FISA- and EO 12333-authorized methods in Reaz Qadir Khan’s case) not only ordered the government to brief whether ongoing dragnettery was legal under Title V of FISA as modified by USA F-ReDux by next Friday, but he ordered the government to turn over an unclassified version of the memorandum of law it submitted on June 2 to restart the dragnet.

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In addition to whatever else this says, it makes it clear that (unsurprisingly) the Administration filed to restart the dragnet on Tuesday night, just after the President signed USA F-ReDux.

The Latest Phone Dragnet Addition: Imminent Death Overrides

As I noted in this post, I Con the Record has released the latest phone dragnet order, this one signed by Oregon judge Michael Mosman.

As with the last order (which added language ensuring the government do a First Amendment review even when obtaining emergency orders), this one made a subtle, but potentially very significant addition. In a long-running footnote noting that technical controls prevented analysts from chaining on a selector that was not RAS approved,

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This order added language noting that NSA could override those controls in case of imminent threat to human life.

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I’m glad they specify “human life” here — because elsewhere NSA has defined “life” to include “property.” And if this is truly about overriding technical controls in case of threat to life, I’m fine with the change. And while the footnote isn’t terrifically clear, I assume this might be used (and since it shows up in the order, might have been used) in a case where NSA was sure a selector was Reasonably Associated with a terrorist affiliate, but had not gone through the formal approval process yet, and therefore had to override the software.

All that said, one thing I saw a remarkable amount of in the IOB reports was software controls (particularly purging functions, but also access controls) that weren’t working as intended.

Let’s hope this is just a way to turn off the safeguards in cases where really necessary and not another (as the IOB repeatedly call software failures) “glitch.”

Michael Mosman’s Interesting 10 Days

On November 24, 20114, Oregon District Court Judge Michael Mosman issued a somewhat curious order explaining his decision, issued 3 days earlier, not to grant Raez Qadir Khan notice of all the surveillance authorities used to investigate him.

While Mosman loves efficiency, he explained, the time was not yet ripe for the issues raised in Khan’s effort to learn how he had been linked to an associate who had conducted a suicide bombing in Pakistan in 2009. But — Mosman promised —

The day will come when the standing, collection, and other issues foreshadowed in this motion will be litigated in this case. Due to the constraints of CIPA, properly applied in this case, that day will come in the next round of motions, without the narrowing of issues that detailed disclosure would allow.

Ten days after signing that order, Mosman signed another one: the latest authorization for the dragnet. In doing so, not only did he authorize the collection of Khan and Khan lawyer Amy Baggio’s call records (as well as those of ACLU lawyers Jameel Jaffer and Pat Toomey; they joined this case in mid-December) — remember that Khan’s conversations with several lawyers were spied on by FBI over the course of their investigation with him.

But by signing the order, Mosman also signed something that has long been in the dragnet orders but — as far as I can tell — utterly ignored: that it envisions the use of the dragnet for exculpatory information.

Early in this case, Khan challenged Mosman’s ability to serve both as trial judge and as FISC judge, a challenge Mosman dismissed.

It will be interesting to see how he handles both roles going forward.

Even the Government Can’t Figure Out How It Uses Its FISA Dragnet

Things are getting interesting in the case of Raez Qadir Khan in Oregon, who was charged in 2011 with conspiring to materially support a suicide bombing that took place in Pakistan in 2009.

As I laid out in September, his lawyers asked to know what types of surveillance it used to collect all the data that went into a search warrant on Khan’s house.

At a hearing on September 11, the government said that it had provided all the notice Khan needed with its traditional, FAA, and physical search FISA notices.

JUDGE MOSMAN: Am I reading your brief correctly that in some way the defense has been told which authorities they ought to think about challenging here, maybe informally?

MR. GORDER: Well, both formally and informally, Your Honor. The formal way was the notices that we filed with the Court, which indicates that the government intends to use evidence derived from FISA Title I and FISA Title IIand FISA Title VII.

In response, at the hearing, Khan attorney Amy Baggio said she’d hold the government to those 3 FISA authorities.

MS. BAGGIO: Now, I understand the point that you made earlier, Your Honor, is they’ve narrowed that somewhat if we’re going to hold them to Title 1, 3 and 7,

Just over a month later, the government wrote the judge, Michael Mosman, a letter, changing its mind. It basically said:

  • It didn’t have to give Khan notice that they used FISA’s PRTT authority against him (most likely in the illegal Internet dragnet), because he didn’t meet all 5 of the criteria required before the government would have to give notice.
  • It didn’t have to give notice under FAA 703 because the government doesn’t intend to enter that electronic surveillance into evidence.
  • It didn’t have to give notice it used Section 215 (note, they almost surely used both the phone dragnet and the Western Union dragnet against him), because Khan lacks standing to contest the admission of this evidence. (Predictably, the government made no mention of the language in phone dragnet orders specifically permitting it to be used for discovery purposes.)

The government said nothing about Protect America Act, Section 704 of FISA (at least according to a Snowden document, the government doesn’t use 703, they use 704, which if that remains true Judge Mosman should know as a FISC judge), or EO 12333. The latter of which, in particular, Baggio has raised repeatedly.

In short, after a month of thinking about it, the government realized that its statements at the hearing were not correct, and that these other authorities were used, and maybe it ought to sort of confess to that after all.

Which Baggio pointed out in a letter filed yesterday.

In the October 15, 2014, letter, the government no longer claims that FISA Titles I, II, and VII (§702) are the only authorities relied on in this case. Instead the government advances, for the first time, arguments about why it is not legally required to provide Mr. Khan with notice that it used FISA subchapters III (PR/TT), IV (§ 215 business records), or FAA § 703. Effectively, the October 15, 2014, letter tacitly admits use of these provisions, but goes on to argue that there are other reasons it need not provide notice.

She also pointed out that, in submitting its letter over a month after the hearing, the government had violated the court’s briefing schedule without obtaining permission to do so.

On October 15, 2014, 65 days after the government’s briefing was due and 34 days after the motion was taken under advisement by the Court, the government submitted a letter raising new arguments and taking new positions in support of its request that the Court deny Mr. Khan’s Motion to Compel Notice. Exhibit B.


When the Court sets deadlines in a Rule 12(c) scheduling order, a party who fails to raise a “defense, objection, or request” related to a pretrial motion to suppress waives that argument. Fed. R. Crim. P. 12(e).1 A court may grant a party leave to submit a late argument if the party establishes “good cause.” Id. Here, the government did not seek leave before offering additional arguments over two months after its briefing was due. Moreover, the letter makes no attempt to establish good cause.

She goes on to hammer the government for its tortured definitions of “collect,” citing — among other things — James Clapper’s lie to Oregon’s Senator.

That is, the DoD definition permits the NSA to obtain communications and store them in a government database without a “collection” occurring. These regulations establish that government takes the position that the communications were “collected” only after an algorithm searches them for key words and analyzes the metadata.

Similarly, Director of National Intelligence (DNI) Clapper explained in Senate testimony in response to a direct question from Senator Wyden in which DNI Clapper denied “collecting” data on millions or hundreds of millions of Americans by stating: “[T]here are honest differences on the semantics when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to him [Senator Wyden].”

While she doesn’t say it, we know that the government uses both phone and Internet dragnet data — the Section 215 and PRTT collection the government refuses to notice — as the index to pull up this already collected data. Given that the investigation into Khan likely started only after his alleged co-conspirator’s suicide bombing, much of the evidence was almost certainly stored communication, pulled up using metadata as an index.

Baggio ends by calling on Mosman — a Title III judge but also a FISC judge — to guard his prerogative as the former.

The government’s letter attempts to justify a blanket policy of non-disclosure by coopting this Court’s constitutional role to resolve legal questions about whether (1) particular government conduct constitutes a search or seizure, (2) whether the search or seizure violated Mr. Khan’s constitutional rights and (3) if so, whether evidence obtained or derived from the search or seizure should be suppressed. The government’s argument amounts to an assertion that it need not provide Mr. Khan with notice because, even if it did, Mr. Khan would lose a motion to suppress. Such arguments offend the fundamental principles of the criminal justice system, and the Court should reject them. Without the type of notice requested in Mr. Khan’s Motion to Compel Notice,

I originally thought that having Mosman preside over this case would be a bit of a disaster, given FISC judges’ apparent willingness to make ridiculous arguments to defend the viability of their secret court. But I think Baggio is giving Mosman an important lesson in how the authorities he approves in secret actually play out in practice.

We’ll see whether he’s more interested in defending the prerogative of his Title III role or the claimed legitimacy of his secret judge role.