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FBI’s Back Door Searches: Explicit Permission … and Before That

I have written numerous times about the timing of authorization for FBI to do back door searches. There’s a passage of the November 6, 2015 FISC opinion finding those searches to be constitutional that some have taken to clearly date the authority. But I believe the (unredacted sections of the) passage are being misread.

As Judge Thomas Hogan describes, “Queries by FBI personnel of Section 702-acquired data…

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As the unredacted parts of the section make clear, queries for both foreign intelligence information or evidence of a crime “have been explicitly permitted by the FBI Minimization Procedures since 2009.” [my emphasis] The footnote goes onto describe how Minimization Procedures approved by Attorney General Mukasey on October 22, 2008 and submitted on some redacted date were approved by an opinion issued on April 7, 2009.

Already, that’s a curious set of details. If the minimization procedures were approved in October 2008, normally they’d be submitted close to right away, though it’s not clear that that happened. But why bother, given that FISC had just approved FAA certifications on September 4 (this timing resembles what had happened earlier that year, when the government significantly changed the program within days of getting certificates approved)?  In any case, James Clapper’s censors want to hide what those dates were. One likely reason they might have done so would be to hide the dates from defendants, including a few of the ones challenging 702. Another would be to obscure how the approval process went after passage of FISA Amendments Act, specifically given that the FISA Court of Review finalized its Yahoo opinion in August of that year, in which it relied on DOJ’s promise that “there is no database” of incidentally collected US person information.

There Is No Database

But two other things suggest that’s not the end of the story. First, the use of “explicitly” suggests there may have been a period before FISC approved the minimization procedures when such a practice was approved but perhaps not explicitly. Perhaps that simply refers to that lag period, between the time Mukasey approved those minimization procedures and the time FISC approved them.

But then there’s that redacted paragraph (the next footnote, 25, starts after it). Hogan adds something to his discussion beyond his description of the explicit approval of those minimization procedures.

As I have pointed out, Mukasey (writing with then Director of National Intelligence Mike McConnell, who would also have to approve any PRISM minimization procedures) made it clear in response to a Russ Feingold amendment of FISA Amendments Act in February of 2008 that they intended to spy in Americans under PRISM.

So it sure seems likely the Administration at the very least had FBI back door searches planned, if not already in the works, well before FISC approved the minimization procedures in 2009. That’s probably what Hogan explained in that paragraph, but James Clapper apparently believes it would be legally inconvenient to mention that.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

There’s More to the SPCMA Document

Long time readers likely know I’ve been obsessed with the decision, which as far as we currently know started in 2007 after Alberto Gonzales and (since returned as FBI General Counsel) James Baker left DOJ, to let DOD chain through US person identifiers on metadata collected under EO 12333, what gets described as Special Procedures Governing Communications Metadata Analysis, or SPCMA. Here’s a post that describes it at more length.

We first learned about SPCMA in June 2013, when the Guardian published a 16-page document pertaining to the approval process that had been leaked by Edward Snowden. That document consisted of:

  • A ten page memo dated November 20, 2007, from Assistant Attorney General for National Security Ken Wainstein and Acting OLC Head Steve Bradbury, analyzing the legality of SPCMA and recommending approval of the change.
  • Appendix A, consisting of a cover sheet and a two-page approval memo signed by Robert Gates on October 19, 2007 and Michael Mukasey on January 3, 2008. As I noted in this post, the signature line had to be altered after the fact to indicate Mukasey was signing it, suggesting that then Acting Attorney General Peter Keisler had refused.
  • Appendix B, a September 28, 2006 memo written to Office of Intelligence and Policy head James Baker (this was the predecessor to the NSD at DOJ) by NSA’s General Counsel Vito Potenza requesting he approve what became SPCMA (Baker did not approve it).

Though it is not included in what Snowden leaked, the memo describes a third Appendix, Appendix C:

On July 20, 2004, the General Counsel of CIA wrote to the General Counsel of NSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C.

The government has not released an official version of the packet such as it got leaked by Snowden. However, it did release Appendix A, the approval memo, in Fall 2014 as part of the declassification of the Yahoo challenge to the Protect America Act. As I laid out in this post, the government not only got this document approved after the passage of PAA and while Yahoo was challenging orders received under it, but DOJ tried to hide it from FISC Judge Reggie Walton. They only handed it over — though without the context of the approval memo that made it clear it was about contact chaining including Americans — after he had scolded DOJ several times about not handing over all the documentation related to PAA.

DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

So to sum up: We have 16 pages (the memo and two of three appendices) thanks to Edward Snowden, and we have an official copy of just the 2-page approval memo, released on the context of the Yahoo declassification.

I lay all this out because this entry, in the National Security Division Vaughn Index provided to ACLU last month, is undoubtedly this same memo.

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The date is the same, the description is almost the same. The only difference is that the withheld document has 20 pages, as compared to the 16 pages that Snowden gave us.

From that I conclude that the 2004 CIA memo is four pages long (three, plus a cover sheet). Note the date: squarely during the period when spooks were trying to put discontinued parts of Stellar Wind under some kind of legal authority.

Here’s how the NSA declared Exemptions 1 and 3 over this document.

56. NSD fully withheld Document 4 on its Vaughn index in part because the release of any portion of that document would disclose classified information about functions or activities of NSA. The document is a 20-page document dated 20 November 2007 and is described as NSD Legal Memo on Amending DoD Procedures and Accompanying Documentation.” This document. including its full title, was withheld in full under Exemption 1 and Exemption 3. I have reviewed the information withheld and determined that the information is currently and properly classified at the SECRET level in accordance with EO 13526 because the release of this information could reasonably be expected to cause serious damage to the national security. The information withheld pertains to intelligence activities, intelligence sources or methods, or cryptology. or the vulnerabilities or capabilities of systems or projects relating to the national security and therefore meets the criteria for classification set for in Sections 1.4(c) and 1.4(g) of EO 13526. The harm to national security of releasing any portion of this document and the reasons that no portion of this document can be released without disclosing classified information cannot be fully described on the public record. As a result my ex parte. in camera classified declaration more fully explains why this document was withheld in full.

57. The information withheld in N 0 Document 4 also relates to a “function of the National Security Agency” 50 U.S.C. § 3605. Indeed. this information relates to one of NSA’s primary functions, its SIGINT mission. Any disclosure of the withheld information would reveal NSA ·s capabilities and the tradecraft used to carry out this vital mission. Further. revealing these details would disclose “information with respect to lNSA ‘s] activities” in furtherance of its SIGINT mission. 50 U .. C. § 3605. Therefore. the information withheld is also protected from release by statute and is exempt from release based on FOIA Exemption 3. 5 U.S.C. § 552(b)(3).

The government asserted secrecy over the title of an already (and officially) released document in a recent EFF challenge, so this would not be the first time the government claimed the title of an already released document was secret to prevent nasty civil liberties groups from confirming that a FOIAed document was the same as a previously known one.

In NSD’s declaration, Bradley Weigmann indicated that “the vast majority” of the document pertained to attorney-client privilege.

NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected by the attorney-client privilege. These documents discuss legal issues pertaining to an NSA program, set forth legal advice prepared by NSD lawyers for other attorneys to assist those other attorneys in representing the Government, and were sought by a decision-maker for the Government to obtain legal advice on questions of law and indeed reflect such advice. As such, NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected from disclosure under the attorney-client privilege.

More interestingly, by referring to “an NSA program” it seemed to tie this document with this 2003 OIPR memo.

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And this November 12, 2013 email (written during a period in the aftermath of the Snowden releases as the government was trying to decide how to respond to various FOIAs as well as Yahoo’s request to unseal its challenge, not to mention after ACLU submitted this FOIA, which was actually submitted before the first Snowden leaks).

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Note, NSD won’t tell us what date in 2003 someone at OIPR (already headed by James Baker, one of the few people briefed on Stellar Wind) wrote about “an NSA program” that appears to be tied the chaining on US person metadata.

I have long believed one of the known but still as yet undescribed modifications to Stellar Wind (there is still at least one, though I believe there are two) enacted after the hospital confrontation in 2004 has to have been either at CIA or DOD, because it doesn’t appear in the unredacted NSA IG Report Snowden gave us. Here, we see CIA unsuccessfully asking for US person metadata at the time everyone was re-establishing Stellar Wind under more legal cover. Assuming NSA document 4 is this memo, the only thing the government is withholding that we haven’t seen yet is the CIA memo. I have a lot more suspicions about this program, too, that I still need to write up.

But I suspect they’re hiding these documents from us — and just as importantly, from the FISA Court — to prevent us from putting the various details of how US person metadata has been used over time. Or rather, to prevent us from laying out how the point of these foreign-targeted surveillance programs is to spy on Americans.

ACLU has already told the government they’re challenging the withholding of these documents.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

What We Know about the Section 215 Phone Dragnet and Location Data

Last month’s squabble between Marco Rubio and Ted Cruz about USA Freedom Act led a number of USAF boosters to belatedly understand what I’ve been writing for years: that USAF expanded the universe of people whose records would be collected under the program, and would therefore expose more completely innocent people, along with more potential suspects, to the full analytical tradecraft of the NSA, indefinitely.

In an attempt to explain why that might be so, Julian Sanchez wrote this post, focusing on the limits on location data collection that restricted cell phone collection. Sanchez ignores two other likely factors — the probable inclusion of Internet phone calls and the ability to do certain kinds of connection chaining — that mark key new functionalities in the program which would have posed difficulties prior to USAF. But he also misses a lot of the public facts about location collection and cell phones under the Section 215 dragnet.  This post will lay those out.

The short version is this: the FISC appears to have imposed some limits on prospective cell location collection under Section 215 even as the phone dragnet moved over to it, and it was not until August 2011 that NSA started collecting cell phone records — stripped of location — from AT&T under Section 215 collection rules. The NSA was clearly getting “domestic” records from cell phones prior to that point, though it’s possible they weren’t coming from Section 215 data. Indeed, the only known “successes” of the phone dragnet — Basaaly Moalin and Adis Medunjanin — identified cell phones. It’s not clear whether those came from EO 12333, secondary database information that didn’t include location, or something else.

Here’s the more detailed explanation, along with a timeline of key dates:

There is significant circumstantial evidence that by February 17, 2006 — two months before the FISA Court approved the use of Section 215 of the PATRIOT Act to aspire to collect all Americans’ phone records — the FISA Court required briefing on the use of “hybrid” requests to get real-time location data from targets using a FISA Pen Register together with a Section 215 order. The move appears to have been a reaction to a series of magistrates’ rulings against a parallel practice in criminal cases. The briefing order came in advance of the 2006 PATRIOT Act reauthorization going into effect, which newly limited Section 215 requests to things that could be obtained with a grand jury subpoena. Because some courts had required more than a subpoena to obtain location, it appears, FISC reviewed the practice in the FISC — and, given the BR/PR numbers reported in IG Reports, ended, sometime before the end of 2006 though not immediately.

The FISC taking notice of criminal rulings and restricting FISC-authorized collection accordingly would be consistent with information provided in response to a January 2014 Ron Wyden query about what standards the FBI uses for obtaining location data under FISA. To get historic data (at least according to the letter), FBI used a 215 order at that point. But because some district courts (this was written in 2014, before some states and circuits had weighed in on prospective location collection, not to mention the 11th circuit ruling on historical location data under US v. Davis) require a warrant, “the FBI elects to seek prospective CSLI pursuant to a full content FISA order, thus matching the higher standard imposed in some U.S. districts.” In other words, as soon as some criminal courts started requiring a warrant, FISC apparently adopted that standard. If FISC continued to adopt criminal precedents, then at least after the first US v. Davis ruling, it would have and might still require a warrant (that is, an individualized FISA order) even for historical cell location data (though Davis did not apply to Stingrays).

FISC doesn’t always adopt the criminal court standard; at least until 2009 and by all appearances still, for example, FISC permits the collection, then minimization, of Post Cut Through Dialed Digits collected using FISA Pen Registers, whereas in the criminal context FBI does not collect PCTDD. But the FISC does take notice of, and respond to — even imposing a higher national security standard than what exists at some district levels — criminal court decisions. So the developments affecting location collection in magistrate, district, and circuit courts would be one limit on the government’s ability to collect location under FISA.

That wouldn’t necessarily prevent NSA from collecting cell records using a Section 215 order, at least until the Davis decision. After all, does that count as historic (a daily collection of records each day) or prospective (the approval to collect data going forward in 90 day approvals)? Plus, given the PCTDD and some other later FISA decisions, it’s possible FISC would have permitted the government to collect but minimize location data. But the decisions in criminal courts likely gave FISC pause, especially considering the magnitude of the production.

Then there’s the chaos of the program up to 2009.

At least between January 2008 and March 2009, and to some degree for the entire period preceding the 2009 clean-up of the phone and Internet dragnets, the NSA was applying EO 12333 standards to FISC-authorized metadata collection. In January 2008, NSA co-mingled 215 and EO 12333 data in either a repository or interface, and when the shit started hitting the fan the next year, analysts were instructed to distinguish the two authorities by date (which would have been useless to do). Not long after this data was co-mingled in 2008, FISC first approved IMEI and IMSI as identifiers for use in Section 215 chaining. In other words, any restrictions on cell collection in this period may have been meaningless, because NSA wasn’t heeding FISC’s restrictions on PATRIOT authorized collection, nor could it distinguish between the data it got under EO 12333 and Section 215.

Few people seem to get this point, but at least during 2008, and probably during the entire period leading up to 2009, there was no appreciable analytical border between where the EO 12333 phone dragnet ended and the Section 215 one began.

There’s no unredacted evidence (aside from the IMEI/IMSI permission) the NSA was collecting cell phone records under Section 215 before the 2009 process, though in 2009, both Sprint and Verizon (even AT&T, though to a much less significant level) had to separate out their entirely foreign collection from their domestic, meaning they were turning over data subject to EO 12333 and Section 215 together for years. That’s also roughly the point when NSA moved toward XML coding of data on intake, clearly identifying where and under what authority it obtained the data. Thus, it’s only from that point forward where (at least according to what we know) the data collected under Section 215 would clearly have adhered to any restrictions imposed on location.

In 2010, the NSA first started experimenting with smaller collections of records including location data at a time when Verizon Wireless was named on primary orders. And we have two separate documents describing what NSA considered its first collection of cell data under Section 215 on August 29, 2011. But it did so only after AT&T had stripped the location data from the records.

It appears Verizon never did the same (indeed, Verizon objected to any request to do so in testimony leading up to USAF’s passage). The telecoms used different methods of delivering call records under the program. In fact, in August 2, 2012, NSA’s IG described the orders as requiring telecoms to produce “certain call detail records (CDRs) or telephony metadata,” which may differentiate records that (which may just be AT&T) got processed before turning over. Also in 2009, part of Verizon ended its contract with the FBI to provide special compliance with NSLs. Both things may have affected Verizon’s ability or willingness to custom what it was delivering to NSA, as compared to AT&T.

All of which suggests that at least Verizon could not or chose not to do what AT&T did: strip location data from its call records. Section 215, before USAF, could only require providers to turn over records they kept, it could not require, as USAF may, provision of records under the form required by the government. Additionally, under Section 215, providers did not get compensated after the first two dragnet orders.

All that said, the dragnet has identified cell phones! In fact, the only known “successes” under Section 215 — the discovery of Basaaly Moalin’s T-Mobile cell phone and the discovery of Adis Medunjanin’s unknown, but believed to be Verizon, cell phone — did, and they are cell phones from companies that didn’t turn over records. In addition, there’s another case, cited in a 2009 Robert Mueller declaration preceding the Medunjanin discovery, that found a US-based cell phone.

There are several possible explanations for that. The first is that these phones were identified based off calls from landlines and/or off backbone records (so the phone number would be identified, but not the cell information). But note that, in the Moalin case, there are no known land lines involved in the presumed chain from Ayro to Moalin.

Another possibility — a very real possibility with some of these — is that the underlying records weren’t collected under Section 215 at all, but were instead collected under EO 12333 (though Moalin’s phone was identified before Michael Mukasey signed off on procedures permitting the chaining through US person records). That’s all the more likely given that all the known hits were collected before the point in 2009 when the FISC started requiring providers to separate out foreign (EO 12333) collection from domestic and international (Section 215) collection. In other words, the Section 215 phone dragnet may have been working swimmingly up until 2009 because NSA was breaking the rules, but as soon as it started abiding by the rules — and adhering to FISC’s increasingly strict limits on cell location data — it all of a sudden became virtually useless given the likelihood that potential terrorism targets would use exclusively cell and/or Internet calls just as they came to bypass telephony lines. Though as that happened, the permissions on tracking US persons via records collected under EO 12333, including doing location analysis, grew far more permissive.

In any case, at least in recent years, it’s clear that by giving notice and adjusting policy to match districts, the FISC and FBI made it very difficult to collect prospective location records under FISA, and therefore absent some means of forcing telecoms to strip their records before turning them over, to collect cell data.

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

GOP Brought in Guy Who Authorized Dragnet to Talk Dragnets

I’m far more alarmed by this tidbit in the latest report on the fight over USA F-ReDux than many who are commenting on it.

McConnell’s presser came following Senate lunches, during which former Attorney General Michael Mukasey, who served under George W. Bush, briefed Republicans on the importance of the surveillance authorities. While defending the NSA’s phone-records dragnet, Mukasey did say a recent federal appeals court deeming the program illegal could complicate McConnell’s efforts to renew the Patriot Act without changes, given the legal uncertainty that could result, according to two senators present.

“He did recommend some acknowledgment of the decision so that it is addressed in the legislation,” Sen. John Hoeven, a North Dakota Republican, said.

The Republicans sat down to talk about dragnet surveillance and they brought in Michael Mukasey, who not only presided over the expansion of Stellar Wind in the form of FISA Amendments Act, but authorized SPCMA after some previous DOJ officials appear to have refused to.

SPCMA, you’ll recall, is the authority to contact chain on US-person metadata collected under EO 12333 that current FBI General Counsel James Baker refused to authorize in an earlier position at DOJ in 2006 but which Mukasey signed in early 2008 (and DOJ then promptly hid from FISC as it was considering whether the contact chaining that provided particularly under PRISM was constitutionally sound). The actual authorization for it languished for several months, half-signed, before Mukasey signed it in the early part of his tenure as Attorney General.

There is reason to believe SPCMA — that is, Internet data collected overseas, in addition to telephone metadata — is where a lot of the Internet chaining currently occurs, with almost none of the controls (or subject limitations) that existed under the PATRIOT-Authorized Internet dragnet. There is also reason to believe that USA F-ReDux envisions the government federating queries of metadata collected under its new Call Detail Record function with SPCMA data. Finally, I suspect that the Second Circuit decision on Section 215 may have repercussions for SPCMA as well.

In other words, I find it fairly alarming that GOP brought in Michael Mukasey and his advice was to make a nod to the Second Circuit even while talking about why the authorities — plural — were important.

Which is to say I don’t think his acknowledgment that Courts are Courts is very comforting, given that he appears to recommend sustaining existing “surveillance authorities” in current bulk form.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Protect America Act Was Designed to Collect on Americans, But DOJ Hid that from the FISC

The government released a document in the Yahoo dump that makes it clear it intended to reverse target Americans under Protect America Act (and by extension, FISA Amendments Act). That’s the Department of Defense Supplemental Procedures Governing Communications Metadata Analysis.

The document — as released earlier this month and (far more importantly) as submitted belatedly to the FISC in March 2008 — is fairly nondescript. It describes what DOD can do once it has collected metadata (irrespective of where it gets it) and how it defines metadata. It also clarifies that, “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communcations, nor to they qualify as ‘us[ing] a selection term’.”

The procedures do not once mention US persons.

There are two things that should have raised suspicions at FISC about this document. First, DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

The signature lines should have raised even bigger suspicions.

Gates Mukasey

First, there’s the delay between the two dates. Robert Gates, signing as Secretary of Defense, signed the document on October 17, 2007. That’s after at least one of the PAA Certifications underlying the Directives submitted to Yahoo (the government is hiding the date of the second Certification for what I suspect are very interesting reasons), but 6 days after Judge Colleen Kollar-Kotelly submitted questions as part of her assessment of whether the Certifications were adequate. Michael Mukasey, signing as Attorney General, didn’t sign the procedures until January 3, 2008, two weeks before Kollar-Kotelly issued her ruling on the certifications, but long after it started trying to force Yahoo to comply and even after the government submitted its first ex parte submission to Walton. That was also just weeks before the government redid the Certifications (newly involving FBI in the process) underlying PAA on January 29. I’ll come back to the dates, but the important issue is they didn’t even finalize these procedures until they were deep into two legal reviews of PAA and in the process of re-doing their Certifications.

Moreover, Mukasey dawdled two months before he signed them; he started at AG on November 9, 2007.

Then there’s the fact that the title for his signature line was clearly altered, after the fact.

Someone else was supposed to sign these procedures. (Peter Keisler was Acting Attorney General before Mukasey was confirmed, including on October 17, when Gates signed these procedures.) These procedures were supposed to be approved back in October 2007 (still two months after the first PAA Certifications) but they weren’t, for some reason.

The backup to those procedures — which Edward Snowden leaked in full — may explain the delay.

Those procedures were changed in 2008 to reverse earlier decisions prohibiting contact chaining on US person metadata. 

NSA had tried to get DOJ to approve that change in 2006. But James Baker (who was one of the people who almost quit over the hospital confrontation in 2004 and who is now FBI General Counsel) refused to let them.

After Baker (and Alberto Gonzales) departed DOJ, and after Congress passed the Protect America Act, the spooks tried again. On November 20, 2007, Ken Wainstein and Steven Bradbury tried to get the Acting Deputy Attorney General Craig Morford (not Mukasey, who was already AG!) to approve the procedures. The entire point of the change, Wainstein’s memo makes clear, was to permit the contact chaining of US persons.

The Supplemental Procedures, attached at Tab A, would clarify that the National Security Agency (NSA) may analyze communications metadata associated with United States persons and persons believed to be in the United States.

What the government did, after passage of the PAA, was make it permissible for NSA to figure out whom Americans were emailing.

And this metadata was — we now know — central to FISCR’s understanding of the program (though perhaps not FISC’s; in an interview today I asked Reggie Walton about this document and he simply didn’t remember it).

The new declassification of the FISCR opinion makes clear, the linking procedures (that is, contact chaining) NSA did were central to FISCR’s finding that Protect America Act, as implemented in directives to Yahoo, had sufficient particularity to be reasonable.

The linking procedures — procedures that show that the [redacted] designated for surveillance are linked to persons reasonably believed to be overseas and otherwise appropriate targets — involve the application of “foreign intelligence factors” These factors are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. As attested by affidavits  of the Director of the National Security Agency (NSA), the government identifies [redacted] surveillance for national security purposes on information indicating that, for instance, [big redaction] Although the FAA itself does not mandate a showing of particularity, see 50 U.S.C. § 1805(b). This pre-surveillance procedure strikes us as analogous to and in conformity with the particularly showing contemplated by Sealed Case.

In fact, these procedures were submitted to FISC and FISCR precisely to support their discussion of particularity! We know they were using these precise procedures with PAA because they were submitted to FISC and FISCR in defense of a claim that they weren’t targeting US persons.

Except, by all appearances, the government neglected to tell FISC and FISCR that the entire reason these procedures were changed, subsequent to the passage of the PAA, was so NSA could go identify the communications involving Americans.

And this program, and the legal authorization for it? It’s all built into the FISA Amendments Act.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Curious Timing of FBI’s Back Door Searches

The very first thing I remarked on when I read the Yahoo FISCR opinion when it was first released in 2009 was this passage.

The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.9 See, e.g., United States v. Kahn, 415 U.S. 143, 157-58 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976). The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26 in original release; 30 in current release)

The government claimed to FISCR that it did not maintain a database of incidentally collected information from non-targeted US persons.

Barring some kind of neat parse, I didn’t buy the claim, not even in 2009.

Since then, we’ve found out that — barring some kind of neat parse — I was absolutely right. In fact, they are doing back door searches on this data, especially at FBI.

What I’m particularly intrigued by, now, is the timing.

FISCR said that in an opinion dated August 22, 2008 — over a month after the July 10, 2008 passage of the FISA Amendments Act. I have not yet found evidence of when the government said that to FISCR. It doesn’t appear in the unredacted part of their Jun 5, 2008 Merits brief (which cites Kahn but not Schwartz; see 49-50), though it might appear behind the redaction on 41. Of note, the April 25, 2008 FISC opinion doesn’t even mention the issue in its incidental collection discussion (starting at 95), though it does discuss amended certifications filed in February 2008.

So I’m guessing the government made that representation at the hearing in June, 2008.

We know, from John Bates’ rationale for authorizing NSA and CIA back door searches, such back door searches were first added to FBI minimization procedures in 2008.

When Bates approved back door searches in his October 3, 2011 opinion, he pointed to FBI’s earlier (and broader) authorities to justify approving it for NSA and CIA. While the mention of FBI is redacted here, at that point it was the only other agency whose minimization procedures had to be approved by FISC, and FBI is the agency that applies for traditional FISA warrants.

[redacted] contain an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information. See [redacted]. In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definitions of minimization procedures at 50 U.S.C. §§ 1801(h) and 1821(4). It follows that the substantially-similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.

So since 2008, FBI has had the ability to do back door searches on all the FISA-authorized data they get, including taps targeting US persons.

The FBI Minimization procedures submitted with the case all date to the 1990s, though a 2006 amendment changing how they logged the identities of US persons collected (note, in 2011, John Bates was bitching at FBI for having ignored an order to reissue all its minimization procedures with updates; I can see why he complained).

As described in the Government’s response of June 16, 2006, identities of U.S. persons that have not been logged are often maintained in FBI databases that contain unminimized information. The procedures now simply refer to “the identities” of U.S. persons, acknowledging that the FBI may not have previously logged such identities.

But there’s reason to believe the FBI minimization procedures — and this logging process — was changed in 2008, because a government document submitted in the Basaaly Moalin case — we know Moalin was wiretapped from December 2007 to April 2008, so during precisely the period of the Yahoo challenge, though he was not indicted until much later — referenced two sets of minimization procedures, seeming to reflect a change in minimization during the period of his surveillance (or perhaps during the period of surveillance of Aden Ayro, which is how Moalin is believed to have been identified).

That is, it all seems to have been happening in 2008.

The most charitable guess would be that explicit authorization for back door searches happened with the FAA, so before the FISCR ruling, but after the briefing.

Except in a letter to Russ Feingold during early debates  on the FAA, Mike Mukasey and Mike McConnell (the latter of whom was involved in this Yahoo fight) strongly shot down a Feingold amendment that would have required the government to segregate all communications not related to terrorism (and a few other things), and requiring a FISA warrant to access them.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

Even 5 years ago, the language about the “devastating impact” segregating non-terrorism data might have strongly suggested the entire point of this collection was to provide for back door searches.

But that letter was dated February 5, 2008, before the FISCR challenge had even begun. While not definitive, this seems to strongly suggest, at least, that the government planned — even if it hadn’t amended the FBI minimization procedures yet — to retain a database of incidentally data to search on, before the government told FISCR they did not.

Update: I forgot a very important detail. In a hearing this year, Ron Wyden revealed that NSA’s authority to do back door searches had been closed some time during the Bush Administration, before it was reopened by John “Bates stamp” Bates.

Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans.  This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today. [my emphasis]

When I noted that Wyden had said this, I guessed that the government had shut down back door searches in the transition from PAA to FAA, but that seems less likely, having begun to review these Yahoo documents, then that it got shut down in response to the hospital confrontation.

But it shows that more extensive back door searches had been in place before the government implied to the FISCR that they weren’t doing back door searches that they clearly were at least contemplating at that point. I’d really like to understand how the government believes they didn’t lie to the FISCR in that comment (though it wouldn’t be the last time they lied to courts about their databases of Americans).

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

SPCMA and ICREACH

Within weeks of Michael Mukasey’s confirmation as Attorney General in November 2007, Assistant Attorney General Ken Wainstein started pitching him to weaken protections then in place for US person metadata collected overseas; Mukasey did so, under an authority that would come to be known as SPCMA, on January 3, 2008.

In 2007, Wainstein explained the need to start including US person data in its metadata analysis, in part, because CIA wanted to get to the data — and had been trying to get to it since 2004.

(3) The Central Intelligence Agency’s (CIA) Interest in Conducting Similar Communications Metadata Analysis. On July 20, 2004 [days after CIA had helped NSA get the PRTT dragnet approved], the General Counsel of CIA wrote to the General Counsel ofNSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C. Although the proposed Supplemental Procedures do not directly address the CIA’s request, they do resolve a significant legal obstacle to the dissemination of this metadata from NSA to CIA. (S//SII/NF)

Wainstein also noted other DOD entities might access the information.

That’s important background to the Intercept’s latest on ICREACH, data sharing middleware that permits other intelligence agencies to access NSA’s metadata directly — and probably goes some way to answer Jennifer Granick’s questions about the story.

As the documents released by the Intercept make clear, ICREACH arose out of an effort to solve a data sharing effort (though I suspect it is partly an effort to return to access available under Bush’s illegal program, in addition to expanding it). A CIA platform, PROTON, had been the common platform for information sharing in the IC. NSA was already providing 30% of the data, but could not provide some of the types of data it had (such as email metadata) and could not adequately protect some of it. Nevertheless, CIA was making repeated requests for more data. So starting in 2005, NSA  proposed ICREACH, a middleware platform that would provide access to both other IC Agencies as well as 2nd parties (Five Eyes members). By June 2007, NSA was piloting the program.

Right in that same time period, NSA’s Acting General Counsel Vito Potenza, Acting OLC head Steven Bradbury, and Wainstein started changing the rules on contact chaining including US person metadata. They did so through some word games that gave the data a legal virgin birth as stored data that was therefore exempt from DOD’s existing rules defining the interception or selection of a communication.

For purposes of Procedure 5 of DoD Regulation 5240.1-R and the Classified Annex thereto, contact chaining and other metadata analysis don’t qualify as the “interception” or “selection” of communications, nor do they qualify as “us[ing] a selection term,” including using a selection term “intended to intercept a communication on the basis of … [some] aspect of the content of the communication.”

See this post for more on this amazing legal virgin birth.

Significantly, they would define metadata the same way ICREACH did (page 4), deeming certain login information to be metadata rather than content.

“Metadata” also means (1) information about the Internet-protocol (IP) address of the computer from which an e-mail or other electronic communication was sent and, depending on the circumstances, the IP address of routers and servers on the Internet that have handled the communication during transmission; (2) the exchange of an IP address and e-mail address that occurs when a user logs into a web-based e-mail service; and (3) for certain logins to web-based e-mail accounts, inbox metadata that is transmitted to the user upon accessing the account.

It would take several years to roll out SPCMA (remember, that’s the authority to chain on US person data, as distinct from the sharing platform); a pilot started in NSA’s biggest analytical unit in 2009. When it did, NSA made it clear that personnel could access this data to conduct analysis, but that existing dissemination rules remained the same (which is consistent with the 2006-2008 proposed activity).

Additionally, the analyst must remain cognizant of minimization procedures associated with retention and dissemination of US person information. SPCMA covers analytic procedures and does not affect existing procedures for collection, retention or dissemination of US person information. [emphasis original]

Accessing data in a database to do analysis, NSA appears to have argued, was different than disseminating it (which is a really convenient stance when you’re giving access to other agencies and trying to hide the use of such analysis).

Of course, the pitch to Mukasey only nodded to direct access to this data by CIA (and through them and PROTON, the rest of the IC) and other parts of DOD. In what we’ve seen in yesterday’s documents from the Intercept and earlier documents on SPCMA, NSA wasn’t highlighting that CIA would also get direct access to this data under the new SPCMA authority, and therefore the data would be disseminated via analysis outside the NSA. (Note, I don’t think SPCMA data is the only place NSA uses this gimmick, and as I suggested I think it dates back at least to the illegal dragnet.)

In response to yesterday’s Intercept story, Jennifer Granick suggested that by defining this metadata as something other than communication, it allows the NSA to bypass its minimization procedures.

The same is true of the USSID18 procedures. If the IC excludes unshared stored data and other user information from the definition of communications, no minimization rules at all apply to protect American privacy with regard to metadata NSA collects, either under 12333 or section 702.

[snip]

NSA may nevertheless call this “minimized”, in that the minimization rules, which require nothing to be done, have been applied to the data in question. But the data would not be “minimized” in that it would not be redacted, withheld, or deleted. 

Given what we’ve seen in SPCMA — the authority permitting the analysis of expansively defined metadata to include US person data — she’s partly right — that the NSA has defined this metadata as something other than communication “selection” — but partly missing one of NSA’s gimmicks — that NSA distinguishes “analysis” from “dissemination.”

And if a bunch of agencies can access this data directly, then it sort of makes the word “dissemination” meaningless.  Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

NSA’s Disingenuous Claims about EO 12333 and the First Amendment

SIGINT and 215Thanks to John Napier Tye’s Sunday op-ed, some surveillance watchers are just now discovering EO 12333, which I’ve written some 50 posts about over the last year.

Back in January, I focused on one of the most alarming disclosures of the 2009 phone dragnet problems, that 3,000 presumed US person identifiers were on an alert list checked against each day’s incoming phone dragnet data. That problem — indeed, many of the problems reported at the beginning of 2009 — arose because the NSA dumped their Section 215 phone dragnet data in with all the rest of their metadata, starting at least as early as January 4, 2008. It took at least the better part of 2009 for the government to start tagging data, so the NSA could keep data collected under different authorities straight, though once they did that, NSA trained analysts to use those tags to bypass the more stringent oversight of Section 215.

One thing that episode revealed is that US person data gets collected under EO 12333 (that’s how those 3,000 identifiers got on the alert list), and there’s redundancy between Section 215 and EO 12333. That makes sense, as the metadata tied to the US side of foreign calls would be collected on collection overseas, but it’s a detail that has eluded some of the journalists making claims about the scope of phone dragnet.

Since I wrote that early January post, I’ve been meaning to return to a remarkable exchange from the early 2009 documents between FISC Judge Reggie Walton and the government. In his order for more briefing, Walton raised questions about tasking under NSA’s SIGNIT (that is, EO 12333) authority.

The preliminary notice from DOJ states that the alert list includes telephone identifiers that have been tasked for collection in accordance with NSA’s SIGINT authority. What standard is applied for tasking telephone identifiers under NSA’s SIGINT authority? Does NSA, pursuant to its SIGINT authority, task telephone identifiers associated with United States persons? If so, does NSA limit such identifiers to those that were not selected solely upon the basis of First Amendment protected activities?

The question reveals how little Walton — who had already made the key judgments on the Protect America Act program 2 years earlier — knew about EO 12333 authority.

I’ve put NSA’s complete response below the rule (remember “Business Records” in this context is the Section 215 phone dragnet authority). But basically, the NSA responded,

  • Even though the alert list included IDs that had not been assessed or did not meet Reasonable Articulable Suspicion of a tie to one of the approved terrorist groups, they at least had to have foreign intelligence value. And occasionally NSA’s counterterrorism people purge the list of non-CT IDs.
  • Usually, NSA can only task (a form of targeting!) a US person under a FISA authority.
  • Under EO 12333 and other related authorities, NSA can collect SIGINT information for foreign and counterintelligence purposes; its collection, retention, and dissemination of US person is governed by Department of Defense Regulation 5240.1-R and a classified annex. (see page 45 for the unclassified part of this)
  • Since 2008, if the NSA wants to target a US person overseas they need to get and comply with a FISA order.
  • NSA provides First Amendment protection in two ways — first, by training analysts to spy “with full consideration of the rights of United States persons.”
  • NSA provides First Amendment protection under EO 12333 by prohibiting NSA “from collecting or disseminating information concerning US persons’ ‘domestic activities’ which are defined as ‘activities that take place in the domestic United States that do not involve a significant connection to a foreign power, organization, or person.'”

The First Amendment claims in the last two bullets are pretty weak tea, as they don’t actually address First Amendment issues and contact chaining is, after all, chaining on associations.

That’s all the more true given what we know had already been approved by DOJ. In the last months of 2007, they approved the contact chaining through US person identifiers of already-collected data (including FISA data). They did so by modifying DOD 5240.1 and its classified annex so as to treat what they defined (very broadly) as metadata as something other than interception.

The current DOD procedures and their Classified Annex may be read to restrict NSA’s ability to conduct the desired communications metadata analysis, at least with respect to metadata associated with United States persons. In particular, this analysis may fall within the procedures’ definition of, and thus restrictions on, the “interception” and “selection” of communications. Accordingly, the Supplemental Procedures that would govern NSA’s analysis of communications metadata expressly state that the DOD Procedures and the Classified Annex do not apply to the analysis of communications metadata. Specifically, the Supplemental Procedures would clarify that “contact chaining and other metadata analysis do not qualify as the ‘interception’ or ‘selection’ of communications, nor do they qualify as ‘us[ing] a selection term,’ including using a selection term ‘intended to intercept a communication on the basis of. .. [some] aspect of the content of the communication.” Once approved, the Supplemental Procedures will clarify that the communications metadata analysis the NSA wishes to conduct is not restricted by the DOD procedures and their Classified Annex.

Michael Mukasey approved that plan just as NSA was dumping all the Section 215 data in with EO 12333 data at the beginning of 2008 (though they did not really roll it out across the NSA until later in 2009).

Nowhere in the government’s self-approval of this alternate contact chaining do they mention First Amendment considerations (or even the domestic activities language included in their filing to Walton). And in the rollout, they explicitly permitted starting chains with identifiers of any nationality (therefore presumably including US person) and approved the use of such contact chaining for purposes other than counterterrorism. More importantly, they expanded the analytical function beyond simple contact chaining, including location chaining.

All with no apparent discussion of the concerns a FISC judge expressed when data from EO 12333 had spoiled Section 215 data.

We will, I expect, finally start discussing how NSA has been using EO 12333 authorities — and how they’ve represented their overlap with FISA authorized collection. This discussion is an important place to start. Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Two History Lessons in the Fourth Amendment

I’ve known the story of James Otis’ fight against Writs of Assistance and its role in the establishment of our Fourth Amendment. But I really liked this telling of the story in the BoGlo.

[T]he Fourth Amendment can be traced to a neighborhood that has long regarded outsiders with skepticism. It was in the North End that simmering public resentment against searches found a test case in 1766, when an imperious British official squared off against a proud homeowner who insisted that his modest dwelling was, indeed, his castle.

[snip]

Those with long memories remembered that the original Puritans had fled England at a time when royal officers searched their dwellings for Puritan Bibles and other signs of independent thinking. They knew the phrase “a man’s home is his castle,” linked to an English lawyer, Sir Edward Coke, who had inspired the first generation of New Englanders—and whose own home had been ransacked by English authorities near the end of his life.

The English, tightening the clamps on their vast empire, were stepping up their systems of enforcement in the 1750s and 1760s. The British were certain that they had the right to enter houses to enforce the law— how else could they run an empire? All known governments asserted this power, and much precedent supported it.

In a celebrated court case in 1761, an up-and-coming lawyer, James Otis, attacked the Writs of Assistance in a speech that soon became famous. In a small chamber inside the Old State House, he held his audience spellbound, speaking for hours as he drew on ancient English law to skewer the English. In insisting on “the freedom of one’s house,” he was inventing an argument as much as he was citing precedent—the Magna Carta, designed by 13th-century barons, was a long way from the problems of a Boston homeowner in 1761, and the law was vaguer on these points that Otis cared to admit. But as he hammered away at British arrogance, he expressed an idea about the importance of privacy with deep roots in New England’s rocky soil.

The story’s useful not just for the way the arguments attributed to the British at the time — all governments assert the power to enter homes at will, and how could you run an empire without that authority? — resonate with the arguments made about surveillance now.

But because of the stark contrast it offers with a different story of our founding, one told by John Yoo in an October 2001 OLC memo authorizing the government to use military force in times of emergency within the US. The whole memo is worth reading, but Yoo situated an undefinable authority to respond to exigencies in the Executive, pointing to things like the Shay’s Rebellion and this language from an Alexander Hamilton Federalist paper.

As they understood it, the Constitution amply provided the federal Government with the authority to respond to such exigencies. “There are certain emergencies of nations in which expedients that in the ordinary state of things ought to be forborne become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them.” The Federalist No. 36, at 191 (Alexander Hamilton). Because “the circumstances which may affect the public safety are [not] reducible within certain determinate limits, .. . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy.” Id. No. 23, at 122 (Alexander Hamilton). As the nature and frequency of these emergencies could not be predicted, so too the Framers did not try to enumerate all of the powers necessary in response. Rather, they assumed that the national government would possess a broad authority to take action to meet any emergency. The federal Government is to possess “an indefinite power of providing for emergencies as they might arise.” Id. No. 34, at 175 (Alexander Hamilton). Events leading up to the Federal Convention, such as Shay’s Rebellion, clearly demonstrated the need for a central government that could use military force domestically.

I’m most interested in what Yoo did with this argument. Having decided the President had the authority to use the military within the US, Yoo argued that military operations included searches.

Our forces must be free to “seize” enemy personnel or “search” enemy quarters, papers and messages without having to show “probable cause” before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally “reasonable.” They must be free to use any means necessary to defeat the enemy’s forces, even if their efforts might cause collateral damage to United States persons.

[snip]

The view that the Fourth Amendment does not apply to domestic military operations against terrorists makes eminent sense. Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside. If done by the police for ordinary law enforcement purposes, such actions most likely would be held to violate the Fourth Amendment. See Ybarra v. Illinois, 444 U.S. 85 (1979) (Fourth Amendment violated by evidence search of all persons who are found on compact premises subject to search warrant, even when police have a reasonable belief that such persons are connected with drug trafficking and may be concealing contraband). To subject the military to the warrant and probable cause requirement that the courts impose on the police would make essential military operations such as this utterly impossible.

Cheney’s people did try, unsuccessfully, to use this memo to justify using force in Lackawanna, NY to search for suspected terrorists.

But it was actually used: as foundation for the illegal wiretap program (which, given that it amounted to the NSA invading the stored communications of Americans without a warrant, fundamentally amounted to the deployment of the military domestically). The memo was not withdrawn until after the FISA Amendments Act established a different basis for the dragnet.

The BoGlo tribute to James Otis only underscored how much we’ve colonized our own country, insisting on the authority to conduct such searches because how else can you run an empire!

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

2008’s New and Improved EO 12333: Sharing SIGINT

As part of my ongoing focus on Executive Order 12333, I’ve been reviewing how the Bush Administration changed the EO when, shortly after the passage of the FISA Amendments Act, on July 30, 2008, they rolled out a new version of the order, with little consultation with Congress. Here’s the original version Ronald Reagan issued in 1981, here’s the EO making the changes, here’s how the new and improved version from 2008 reads with the changes.

While the most significant changes in the EO were — and were billed to be — the elaboration of the increased role for the Director of National Intelligence (who was then revolving door Booz executive Mike McConnell), there are actually several changes that affected NSA.

Perhaps the most striking of those is that, even while the White House claimed “there were very, very few changes to Part 2 of the order” — the part that provides protections for US persons and imposes prohibitions on activities like assassinations — the EO actually replaced what had been a prohibition on the dissemination of SIGINT pertaining to US persons with permission to disseminate it with Attorney General approval.

The last paragraph of 2.3 — which describes what data on US persons may be collected — reads in the original,

In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

The 2008 version requires AG and DNI approval for such dissemination, but it affirmatively permits it.

In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.

Given that the DNI and AG certified the minimization procedures used with FAA, their approval for any dissemination under that program would be built in here; they have already approved it! The same is true of the SPCMA — the EO 12333 US person metadata analysis that had been approved by both Attorney General Mukasey and Defense Secretary Robert Gates earlier that year. Also included in FISA-specific dissemination, the FBI had either just been granted, or would be in the following months, permission — in minimization procedures approved by both the DNI and AG — to conduct back door searches on incidentally collected US person data.

In other words, at precisely the time when at least 3 different programs expanded the DNI and AG approved SIGINT collection and analysis of US person data, EO 12333 newly permitted the dissemination of that information.

And a more subtle change goes even further. Section 2.5 of the EO delegates authority to the AG 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.” In both the original and the revised EO, that delegation must be done within the scope of FISA (or FISA as amended, in the revision). But in 1981, FISA surveillance had to be “conducted in accordance with that Act [FISA], as well as this Order,” meaning that the limits on US person collection and dissemination from the EO applied, on top of any limits imposed by FISA. The 2008 EO dropped the last clause, meaning that such surveillance only has to comply with FISA, and not with other limits in the EO.

That’s significant because there are at least three things built into known FISA minimization procedures — the retention of US person data to protect property as well as life and body, the indefinite retention of encrypted communications, and the broader retention of “technical data base information” — that does not appear to be permitted under the EO’s more general guidelines but, with this provision, would be permitted (and, absent Edward Snowden, would also be hidden from public view in minimization procedures no one would ever get to see).

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.