Posts

9th Circuit Rules that Mohamed Osman Mohamud Might Have Killed Like a Bunch of White Mass Killers Had the FBI Not Intervened

The last paragraph of a 9th Circuit Judge John Owens opinion rejecting Mohamed Osman Mohamud’s appeal reads,

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

Mohamud had appealed on several grounds. Generally, he argued that he had been entrapped, that Section 702 was unconstitutional, and that that evidence should be thrown out because he was not informed in timely fashion.

The court was (as they had been in the hearing) most sympathetic to Mohamud’s entrapment case, but found that even though he was first approached before he turned 18 (Mohamud was 19 when he pressed a button believing it would set off a bomb at Portland’s Pioneer Square), the entrapment was less than what happened with James Cromitie, a case the 2nd Circuit upheld.

Nevertheless, the court found that a jury might reasonably find that Mohamud was predisposed to commit a bombing, even before government incitement.

In sum, viewing the evidence in the light most favorable to the government, we cannot say that “no reasonable jury could have concluded that [Mohamud was] predisposed to commit the charged offense[].” Davis, 36 F.3d at 1430. We therefore conclude that the district court properly rejected his defense of entrapment as a matter of law.

The court was less sympathetic to Mohamud’s FISA challenge.

But their argument on this front is pretty weird. The court dodges any ruling on a foreign intelligence exception that the government claimed.

Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any “foreign intelligence exception.”

Instead, it invokes the Third Party doctrine, suggesting that because Mohamud wrote to someone — anyone! —  to suggest he had a diminished expectation of privacy in his side of emails.

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

The court then admits that the sheer volume of incidental collection under Section 702 might be a problem, but suggests that minimization procedures thereby acquire more importance (while bracketing the problem of post-collection querying — also known as back door searches — the FBI conducts all the time).

Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.24

24 To the extent that Amici argue that the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information, that issue is not before us.

Which brings us to this passage assessing the value of those minimization procedures with increased import.

While Executive Branch certification contributes some degree of further protection, it does not weigh heavily. Typically in the Fourth Amendment context, review from a neutral magistrate is considered the appropriate check on the Executive, which otherwise may be motivated by its interest in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14 (explaining that in obtaining a search warrant, a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime’” (citation omitted)). Under these circumstances, where the only judicial review comes in the form of the FISC reviewing the adequacy of procedures, this type of internal oversight does not provide a robust safeguard. The government notes that in In re Sealed Case, 310 F.3d 717, 739 (FISA Ct. Rev. 2002), the FISA Review Court observed that Congress recognized that certification by the AG in the traditional FISA context would “‘assure [ ] written accountability within the Executive Branch’ and provide ‘an internal check on Executive Branch arbitrariness.’” (citation omitted). However, as described above, § 702 differs in important ways from traditional FISA, and a mechanism that might provide additional protections above and beyond those already employed in a traditional FISA context provides far less assurance and accountability in the § 702 context, which lacks those baseline protections. See also Clapper, 133 S. Ct. at 1144–45.

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstnces, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security,

In other words, in the section assessing incidental collection, the court points to the import of minimization procedures. But when it comes to minimization procedures, it does “not place great weight” on them, because of the government’s compelling interest in national security. It is ultimately an argument about necessity based on national security.

Ultimately, then, the court argues that it was okay for the government to read Mohamud’s emails without a warrant, in spite of its admission of weaknesses in the government’s argument about a diminished expectation of privacy and minimization procedures. It does so by invoking three older (though still young) white mass killers, all of whom worked domestically.

While the court definitely relies on targeting rules limiting 702 to someone overseas, with its seeming admission that both its Third Party and its minimization procedure arguments are inadequate (as well as its decision that none of this has to do with a foreign intelligence exception), it gets frightfully close to making an argument that doesn’t distinguish foreign communications from domestic.

Perhaps Owens invokes those three white men to emphasize, unconvincingly, that that doesn’t mean Mohamud was targeted in a way a white non-Muslim wouldn’t be, but given the legal argument that’s left, the opinion is all the more troubling.

Update: Orin Kerr — who knows a lot more about law than I do — doesn’t like this opinion either. Among other common impressions, he’s not happy that Owens borrowed from a not really well written District opinion.

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 Government Admits 9 Defendants Spied On Under Section 702 Have Not Gotten FISA Notice

As I noted, in his opinion approving the Section 702 certifications from last year, Judge Thomas Hogan had a long section describing the 4 different kinds of violations the spooks had committed in the prior year.

One of those pertained to FBI agents not establishing an attorney-client review team for people who had been indicted, as mandated by the FBI’s minimization procedures.

In his section on attorney-client review team violations, Hogan describes violations in all four of the Quarterly Reports submitted since the previous 702 certification process: December 19, 2014, March 20, 2015, June 19, 2015, and September 18, 2015. He also cites three more Preliminary Compliance Reports that appear not to be covered in that September 18, 2015 report: one on September 9, 2015, one on October 5, 2015, and one on October 8, 2015. His further discussion describes the government claiming at a hearing on October 8 to discuss the issue that, thanks to a new system FBI had deployed to address the problem, “additional instances of non-compliance with the review team requirement were discovered by the time of the October 8 Hearing.”

But as Hogan notes in his November 2015 opinion, FBI discovered a lot of these issues because FBI had had a similar problem the previous year and he required them to review for it closely in his 2014 order. A July 30, 2014 letter submitted as part of the recertification process describes two instances in depth: one noticed in February 2014 and reported in the March Quarterly report, and one noticed in April and reported in the June 2014, each involving multiple accounts. A footnote to that discussion admits “there have been additional, subsequent instances of this type of compliance incident.”

Set aside, for the moment, the persistence with which FBI failed to set up review teams to make sure prosecutorial teams were not reading the attorney-client conversations of indicted defendants (who are the only ones who get such protection!!!). Set aside the excuses they gave, such as that they thought this requirement — part of the legally mandatory minimization procedures — didn’t apply for sealed indictments or with targets located outside the United States.

Conservatively, this significantly redacted discussion identifies 9 examples (2 reported in Compliance Reports in 2014, at least 1 reported each in each of four quarterly Compliance report between applications, plus 3 individual compliance reports submitted after the September Compliance report) when people who have been indicted had their communications collected under Section 702, whether they were the target of the 702 directives or not.

And yet, as Patrick Toomey wrote in December, not a single defendant has gotten a Section 702 notice during the period in question.

Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after reports surfaced in the New York Times that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped — and for the last 20 months, crickets.

We know both Mohamed Osman Mohamud — who received a 702 notice personally — and Bakhtiyor Jumaev — who would have secondary 702 standing via Jamshid Muhtorov, with whom he got busted — had their attorney-client communications spied on. But that wasn’t (damn well better not have been!!) 702 spying, because both parties to all those conversations were in the US.

These are 9 different defendants who’ve not yet been told they were being spied on under 702.

Why not?

The answer is probably the one Toomey laid out: that even though members of a prosecutorial team were listening in on attorney-client conversations collected under 702, DOJ made sure nothing from those conversations (or anything else collected via 702) got used in another court filing, and thereby avoided the notice requirement.

Based on what can be gleaned from the public record, it seems likely that defendants are not getting notice because DOJ is interpreting a key term of art in Fourth Amendment law too narrowly — the phrase “derived from.” Under FISA itself, the government is obliged to give notice to a defendant when its evidence is “derived from” Section 702 surveillance of the defendant’s communications. There is good reason to think that DOJ has interpreted this phrase so narrowly that it can almost always get around its own rule, at least in new cases.

It is clear from public reporting and DOJ’s filings in the ACLU’s lawsuit that it has spent years developing a secret body of law interpreting the phrase “derived from.” Indeed, from 2008 to 2013, National Security Division lawyers apparently adopted a definition of “derived” that eliminated notice of Section 702 surveillance altogether. Then, after this policy became public, DOJ came up with something else, which produced a handful of notices in existing cases.

Savage reports in Power Wars that then-Deputy Attorney General James Cole decided that Section 702 information had to have been “material” or “critical” to trigger notice to a defendant. But the book doesn’t provide any details about the legal underpinnings for this rule or, crucially, how Cole’s directive was actually implemented within DOJ. The complete absence of Section 702 notices since April 2014 suggests DOJ may well have found new ways of short-circuiting the notice requirement.

One obvious way DOJ might have done so is by deeming evidence to be “derived from” Section 702 surveillance only when it has expressly relied on Section 702 information in a later court filing — for instance, in a subsequent FISA application or search warrant application. (Perhaps DOJ’s interpretation is slightly more generous than this, but probably not by much.) DOJ could then avoid giving notice to defendants simply by avoiding all references to Section 702 information in those court filings, citing information gleaned from other investigative sources instead — even if the information from those alternative sources would never have been obtained without Section 702.

So these 9 mystery defendants don’t tell us anything new. They just give us a number — 9 — of defendants the government now has officially admitted have been spied on under 702 who have not been told that.

As I noted, Judge Hogan did not include this persistent attorney-client problem among the things he invited Amy Jeffress to review as amicus. Whether or not she would have objected to the persistent violation of FBI’s minimization procedures, a review of them would also have given her evidence from which she might have questioned FBI’s compliance with another part of 702, that defendants get notice.

But DOJ seems pretty determined to flout that requirement going forward.

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.

One Reason We’re Losing the War against Terrorism

Last Wednesday, Oregon District judge Garr King sentenced Mohamed Osman Mohamud to 30 years in prison for pressing a button FBI undercover officers had led him to believe would bomb Portland’s Christmas tree-lighting ceremony. Mohamud’s attorneys argued that in the almost-four years since his arrest Mohamud has shown a great deal of remorse. Prosecutors suggested that by contesting his conviction by claiming he was entrapped, Mohamud showed no remorse.

So 5 years after Mohamud’s father called the FBI, asking them to help divert his son from his interest in Islamic extremism, the government put Mohamud away for the better part of the rest of his life. Even assuming Mohamud only serves two-thirds of his sentence and pretending inflation doesn’t exist, taxpayers will pay $678,600 to incarcerate Mohamud, on top of the money spent on his 4-year prosecution and the at-least 18 months of informants and undercover officers pursuing the then-teenager.

Meanwhile, as the prosecution of a young man whose father reached out for help and whom the FBI prevented from spending a summer working in Alaska draws to a close, the Administration has been rolling out — for at least the third time (2010, 2011, 2014) — an effort to “counter violent extremism.” While the government has always been squishy about what gets included in “violent extremism,” in practice it has always been an effort to work with Muslim and only Muslim communities to … well, it’s not clear what the point is, whether it’s just a renewed effort to get communities to narc out their own, or whether it’s an effort to provide alternatives to an ideology that has proven attractive to young men in such communities.

The roll-out isn’t going very well.

At a hearing in OH, DHS Secretary Jeh Johnson got an earful from community leaders asking why they should trust the government.

But when Homeland Security Secretary Jeh Johnson showed up recently at the Noor Islamic Cultural Center here to offer a sympathetic ear and federal assistance, he faced a litany of grievances from a group of mostly Muslim leaders and advocates.

They complained of humiliating border inspections by brusque federal agents, F.B.I. sting operations that wrongly targeted Muslim citizens as terrorists and a foreign policy that leaves President Bashar al-Assad of Syria in place as a magnet for extremists.

“Our relationship has to be built on trust, but the U.S. government hasn’t given us very many reasons to build up that trust,” said Omar Saqr, 25, the cultural center’s youth coordinator.

And Linda Sarsour — whose organization serving Arab immigrations was targeted by NYPD’s spying program — asks how they can trust a government that spies on them.

Muslim advocates say there is deep suspicion that, despite all the meetings and the talk of outreach, the government’s main goal is to recruit informants to root out suspected terrorists.

“I don’t know how we can have a partnership with the same government that spies on you,” said Linda Sarsour, advocacy director for the National Network for Arab American Communities.

Perhaps most telling, however, in one of NYT’s several attempts describing what CVE is, it describes spying, not community.

Among its efforts, the Department of Homeland Security provides training to help state and local law enforcement officials in identifying and countering the threat, including indicators of violent extremism and “lone wolf” attacks.

The department awarded the International Association of Chiefs of Police a $700,000 grant last year to develop training on how to prevent, respond to and recover from acts of terrorism.

DHS is going to give a police organization as much to train to spy as it’ll take to incarcerate Mohamud.

Ultimately, no matter how efficient your spying-and-sting-industry, you’re still spending around $1 million to catch and warehouse men because you’re losing an ideological battle. And the spying and stings, and the obvious bias of it, surely sets the US back in its ideological battle.

If the US can’t imagine a better response when a father calls for help but to spend 18 months catching his son a sting, we can roll out CVE programs every other month and we’re not going to earn trust among the communities we need to.

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.

Oregon Prosecutors Wiretapped Defense Investigators on Mohamed Osman Mohamud Case

I’m working on a post on some interesting FISA moves the defense attorney for Reaz Qadir Khan, a Pakistani American indicted for material support for terrorism back in 2012, recently made. But before that, I wanted to note something revealed by documents in his prosecution that I wasn’t aware of before.

The FBI wiretapped 2 conversations and one voicemail defense investigators for Mohamed Osman Mohamud had with Khan in June 2011 and then handed those recordings over to the prosecutor who prosecuted Mohamud and is prosecuting Khan.

In a filing in April, Khan’s lawyers moved to obtain information about the government’s minimization procedures. They pointed to 4 different privileged conversations that had been included in discovery:

  • January 21, 2010 conversation between Khan and his immigration attorney seeking help because the FBI had told him he would be unable to fly overseas to visit his family
  • June 9, 2011 phone interview of Khan by Public Defenders conducting an investigation on behalf of Mohamed Osman Mohamud
  • June 14, 2011 phone interview between Khan and Mohamud’s investigators
  • June 14, 2011 voice mail in which a Mohamud investigator asked Khan to look for something needed by the defense

While the filing doesn’t identify Mohamud as the client in this case, the judge’s subsequent order to unseal the exhibits pertaining to those calls so as to be handed over to the defendant in that case references Mohamud’s docket.

Share with Mohamud

This also likely explains why, at the beginning of this case, the government submitted notice of a possible conflict involving Khan’s lawyer Amy Baggio[Update, that may refer to Lawrence Matasar, who then represented Khan.] She used to work at the Public Defenders office (for all we know, she could have been recorded on those calls). Also, it may begin to explain why the government indicted Khan on December 27, 2012, just weeks before Mohamud’s trial began, but waited to arrest him until March 5, 2013, after Mohamud’s trial had concluded.

Mohamud was right in the middle of his fight to throw out his conviction because he was not noticed about the government’s use of FAA at the time the judge issued this order on May 14, but I don’t see any sign of it in his docket.

While all this doesn’t explain what the tie between Khan and Mohamud is — in its response, the government actually claims it is “unrelated” and that it was not handed over to prosecutors until after the conclusion of Mohamud’s case (which would mean it wasn’t provided to the prosecutor before he indicted Khan) — it does make it clear that the government would share the privileged conversations of one defendant with that defendant’s prosecutor via the prosecution of another defendant under FISA.

In related news, the minimization procedures tied to FBI electronic surveillance released as part of the Yahoo dump have been on the fritz since the release. Here is a copy, but the section on privileged communication is entirely redacted.

Update: In a follow-up, Khan’s lawyer noted 3 more privileged conversations, all January 28, 2012 contacts between Khan and a T Nelson, who is probably Thomas Nelson, who was involved in — among other things — the al-Haramain case.

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.

Eric Holder’s Step Four: Fictional Efforrts Countering Violent Extremism

Eric Holder has attracted a bit of attention for lecturing the Europeans that they should engage in entrapment stings like our FBI, specifically to prevent Europeans from going to fight in Syria.

The second part of our comprehensive strategy looks to ensure that we have in place law enforcement investigative tools and techniques that are both effective and protective of individual rights and the rule of law.  In this regard, we have found undercover operations – which the Federal Bureau of Investigation pioneered in fighting transnational organized crime – to be essential in fighting terrorism as well.  In the United States, the FBI has already conducted undercover operations that have identified individuals with intentions to travel to Syria.  These operations are conducted with extraordinary care and precision, ensuring that law enforcement officials are accountable for the steps they take – and that suspects are neither entrapped nor denied legal protections.  Here, too, the Global Counterterrorism Forum’s Rabat Memorandum calls for such techniques to be applied in countries around the world:  one of the “good practices” it advocates is that countries “Provide a Legal Framework and Practical Measures for Undercover Investigations of Terrorist Suspects or Organizations

Even more noteworthy, in my opinion, is his claim that the fourth part of our strategy to prevent Syria from becoming a training ground for terrorists is preventing radicalization in the first place.

The fourth and final element of our strategy is founded on the notion that strong laws, effective investigative tools, and robust information-sharing must be matched with public engagement – and extensive community outreach.  We must seek to stop individuals from becoming radicalized in the first place by putting in place strong programs to counter violent extremism in its earliest stages.  In my time here in Norway, I have had the chance to learn about – and have been deeply impressed by – Norway’s Action Plan Against Radicalization and Violent Extremism.

Indeed, I have found it critical to engage in international exchanges with my counterparts regarding how we can do better on combating radicalization, and to learn from each other.   I will take home with me important lessons from Norway’s experience.  These lessons will help us implement our own National Strategy and Strategic Implementation Plan, which is led by the Justice Department, the FBI, the Department of Homeland Security, and the National Counterterrorism Center.

Our approach depends on building mutual trust and respect with members of communities across the country – so that we can understand their needs and concerns and to foster open dialogue with community leaders and citizens.  This enables us to work with them to mitigate tensions and identify emerging threats.

At the heart of these engagement efforts in the United States are our United States Attorneys, the chief federal prosecutors in each of the jurisdictions they serve.  Since 2012, our U.S. Attorneys have held or attended more than 1,700 engagement-related events.  And the resulting relationships have not only served to build trust.  They have also produced valuable cooperation, in some cases spurring community members to alert law enforcement about individuals who show an inclination to turn to violence.

Remember, when Mohamed Osman Mohamud’s father called the FBI for help because his son was embracing extremism, the FBI used that as the predicate to entrap him.

I mean, it’d be nice if, when the national security establishment found a young man talking trash in jihadist forums, they’d find him a healthier outlet. But right now, they instead throw undercover officers at the guys, bearing inert bombs.

Let’s hope the Europeans do teach us how to change 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.

PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

I will have far more to say about PCLOB once I finish my working thread. But there’s one glaring flaw in the report’s claim that the government complies with the statute.

Based on the information that the Board has reviewed, the government’s PRISM collection complies with the structural requirements of the statute.

But here’s the report’s discussion of what happens with aggrieved persons — those prosecuted based in information derived from Section 702 information.

Further, FISA provides special protections in connection with legal proceedings, under which an aggrieved person — a term that includes non-U.S. persons — is required to be notified prior to the disclosure or use of any Section 702–related information in any federal or state court.447 The aggrieved person may then move to suppress the evidence on the grounds that it was unlawfully acquired and/or was not in conformity with the authorizing Section 702 certification.448 Determinations regarding whether the Section 702 acquisition was lawful and authorized are made by a United States District Court, which has the authority to suppress any evidence that was unlawfully obtained or derived.449 

But for 5 years after the passage of the law, the government never once gave defendants notice they were aggrieved under Section 702. It lied to the Supreme Court about not having done so. And even while it has since given a limited number of defendants — like Mohamed Osman Mohamud — notice, there are others — David Headley, Najibullah Zazi and Adis Medunjanin, and Khalid Ouazzani — who are known to be aggrieved under Section 702 who have never received notice. Finally, there is the case of the Qazi brothers, which seems to be a case where the government is parallel constructing right in the face of the magistrate.

PCLOB said that the government is generally in compliance with the statute. And yet, it made no mention of known, fairly egregious violations of the statute.

That suggests the report as a whole may be flawed.

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.

Garr King’s Mohamud Decision: Classifying the Unclassified Details of Section 215

There are a lot of appalling things Garr King did in his opinion denying Mohamed Osman Mohamud any of a number of remedies for the government not having revealed he was caught using Section 702.

King gives far too much credence to the government’s farcical claims about why they didn’t disclose the 702 surveillance back when they disclosed the traditional FISA surveillance.  I think King’s portrayal of the FISA Court contradicts itself — and the public record — from paragraph to paragraph (see the last paragraph on 18 and the first on 19, especially). The Third Party argument used for content (see page 40) is pretty crazy, and the minimization procedures discussion (page 41) is ripe for challenge under Chief Justice John Roberts’ insistence that “protocols” are not the protection from General Warrants our Founders fought a Revolution for (and even King seems unpersuaded by the Government’s arguments about back door searches on page 43).

But King’s craziest move is to hide his argument for rejecting Mohamud’s challenge to Section 215 collection.

Defendant raises concerns about the collection of telephone metadata under § 215 of the Patriot Act, codified at 50 U.S.C. § 1861, and any other still-secret warrantless surveillance programs. He assumes there is a strong possibility that his telephone metadata has been collected, and he asks the court to address the lawfulness of these programs, conclude they violate the First and Fourth Amendments, and suppress all fruits of these other surveillance activities.

I deny defendant’s arguments concerning § 215 for the reasons stated in the classified opinion.

It seems to me the proper responses to this question should have been a standing argument (he has no proof he was surveilled, even though we all were) or an unclassified discussion, as Jeffery Miller managed in the Basaaly Moalin case. But to put this discussion of a program that the government claims it has substantially declassified in a classified opinion seems to confirm 215 was used, but deprives Mohamud of challenging the new details about its use the government likely provided.

I suspect it is likely that the government has used Moalin’s call records just like James Clapper admitted they do from the start, as a kind of index to find the content of interest. If I’m right, King’s discussion of it would pertain directly to his wobbly support for back door searches. And it would show just how outrageous the phone dragnet is — because it basically amounts to content “collection” without a warrant (which brings us back to King’s crazypants treatment of content as if it fell under the Third Party doctrine).

We have now had at least 4 cases assessing the constitutionality of the phone dragnet decided in largely unclassified fashion, including another criminal defendant.

And yet the first defendant who might challenge the way Section 215 is likely yoked to Section 702 somehow loses the right to have an adversarial discussion about it.

That seems to betray just how damaging such a discussion might be to the government’s claims.

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.

Richard Posner Prepares to Overrule the Intent of Congress, and Other FISA in Court Stories

While the focus on NSA related issues will be on Washington DC today, with activist events, a debate at Brookings, and a Senate Intelligence Committee hearing, yesterday it was in several courtrooms.

In Chicago DC, Richard Posner reportedly seemed intent on finding a way to overturn Sharon Johnson Coleman’s order that Adel Daoud’s lawyers should be able to review the FISA materials leading to the investigation into him. It seems Posner is not all that interested in Congress’ intent that, in some cases, defendants would be able to review FISA warrants.

While she also reportedly seemed inclined to overturn Coleman’s decision, Ilana Diamond Rovner at least recognized the clear intend of Congress to permit reviews in some circumstances.

Another of the appeals court panelists, Judge Ilana Diamond Rovner, added that Coleman appeared to have “discarded” applicable FISA law and come up with her own justification for opening the records.

Rovner noted in a question for Ridgway that when Congress enacted the FISA law in the 1970s, it could have clearly indicated defense attorneys should never get access to the records. But it didn’t do that, she said.

“Can you give me any scenario where disclosure (to the defense) would be necessary?” Rovner asked.

“It would be a rare circumstance,” Ridgway, the assistant U.S. attorney, responded.

As I noted, the Defense made a very good argument that Congress intended review in such cases as this one.

Perhaps most stunning, however, is the way everyone but a big team of government prosecutors got booted from the court room.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance — including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

I suspect Posner used the period to conduct his own review of the FISA materials, substituting his judgment for Coleman’s, so as to uphold DOJ’s flawless record of never having their FISA worked checked.

But don’t worry: NSA  defenders will point to this and claim has been thoroughly vetted.

Meanwhile, in Oregon, where Mohamed Osman Mohamud is challenging what increasingly looks like his discovery off a back door search, the government appears to have argued that there is a foreign intelligence exception to the Fourth Amendment.

Assistant U.S. Attorney Ethan Knight countered that the government has court-approved procedures in place that were followed with respect to Mohamud’s case. Warrants are not required under an exception for foreign intelligence, he argued.

“The reality is when you peel back the layers of hyperbole, what would be unprecedented is if this court were to grant the defendant’s motion,” Knight said.

He also pushed back against a wider examination of the program, saying that it was “not the time or place or even arguably the branch of government” for the broader debate.

Granted, this is not much more extreme than the argument the government made in its filings (as summarized by ACLU’s Jameel Jaffer), that Americans may have no privacy interest in international communications.

In  support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

The legal record on this is specific. While FISC found there was a warrant exception for “foreign” communications in Yahoo’s challenge of the Protect America Act, the FISA Court of Review’s decision was more narrow, finding only that there was a special need for the information before it, and also finding there were adequate protections for Americans (protections the government has been abrogating since the start of these warrantless programs). So while I will have to check the record, it appears that the line attorneys are going beyond what the appellate record (such as the FISCR decision can be called an appellate record) holds.

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.

No Protection for International Communications: Russ Feingold Told Us So

Both the ACLU’s Jameel Jaffer and EFF have reviews of the government’s latest claims about Section 702. In response to challenges by two defendants, Mohamed Osman Mohamud and Jamshid Muhtorov, to the use of 702-collected information, the government claims our international communications have no Fourth Amendment protection.

Here’s how Jaffer summarizes it:

It’s hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.

What’s surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA’s large-scale surveillance of Americans’ international telephone calls and emails:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

That phrase – “if not completely eliminated” – is unusually revealing. Think of it as the Justice Department’s twin to the NSA’s “collect it all”.

[snip]

In support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

I tracked Feingold’s warnings about Section 702 closely in 2008. That’s where I first figured out the risk of what we now call back door searches, for example. But I thought his comment here was a bit alarmist.

As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.

 

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 NSA’s Retroactive Discovery of Tamerlan Tsarnaev

In the days after the Boston Marathon attack last year, NSA made some noise about expanding its domestic surveillance so as to prevent a similar attack.

But in recent days, we’ve gotten a lot of hints that NSA may have just missed Tamerlan Tsarnaev.

Consider the following data points.

First, in a hearing on Wednesday, Intelligence Community Inspector General Charles McCullough suggested that the forensic evidence found after the bombing might have alerted authorities to Tamerlan Tsarnaev’s radicalization.

Senator Tom Carper: If the Russians had not shared their initial tip, would we have had any way to detect Tamerlan’s radicalization?

[McCullough looks lost.]

Carper: If they had not shared their original tip to us, would we have had any way to have detected Tamerlan’s radicalization? What I’m getting at here is just homegrown terrorists and our ability to ferret them out, to understand what’s going on if someone’s being radicalized and what its implications might be for us.

McCullough: Well, the Bureau’s actions stemmed from the memo from the FSB, so that led to everything else in this chain of events here. You’re saying if that memo didn’t exist, would he have turned up some other way? I don’t know. I think, in the classified session, we can talk about some of the post-bombing forensics. What was found, and that sort of thing. And you can see when that radicalization was happening. So I would think that this would have come up, yes, at some point, it would have presented itself to law enforcement and the intelligence community. Possibly not as early as the FSB memo. It didn’t. But I think it would have come up at some point noting what we found post-bombing.

Earlier in the hearing (around 11:50), McCullough described reviewing evidence “that was within the US government’s reach before the bombing, but had not been obtained, accessed, or reviewed until after the bombing” as part of the IG Report on the attack. So some of this evidence was already in government hands (or accessible to it as, for example, GCHQ data might be).

We know some of this evidence not accessed until after the bombing was at NSA, because the IG Report says so. (See page 20)

Screen Shot 2014-04-12 at 12.37.13 PM

That may or may not be the same as the jihadist material Tamerlan posted to YouTube in 2012, which some agency claims could have been identified as Tamerlan even though he used a pseudonym for some of the time he had the account.

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.” After reviewing a draft of this report, the FBI commented that Tsarnaev’s YouTube display name changed from “muazseyfullah” to “Tamerlan Tsarnaev” on or about February 12, 2013, and suggested that therefore Tsarnaev’s YouTube account could not be located using the search term “Tamerlan Tsarnaaev” before that date.20 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.

20 In response to a DOJ OIG request for information supporting this statement, the FBI produced a heavily redacted 3-page excerpt from an unclassified March 19, 2014, EC analyzing information that included information about Tsarnaev’s YouTube account. The unredacted portion of the EC stated that YouTube e-mail messages sent to Tsarnaev’s Google e-mail account were addressed to “muazseyfullah” prior to February 12, 2013, and to “Tamerlan Tsarnaev” beginning on February 14, 2013. The FBI redacted other information in the EC about Tsarnaev’s YouTube and Google e-mail accounts.

The FBI may not have been able to connect “muazseyfullah” with Tamerlan, but that’s precisely what the NSA does with its correlations process; it has a database that does just that (though it’s unclear whether it would have collected this information, especially given that it postdated the domestic Internet dragnet being shut down).

Finally, there’s the matter of the Anwar al-Awlaki propaganda.

An FBI analysis of electronic media showed that the computers used by Tsarnaev contained a substantial amount of jihadist articles and videos, including material written by or associated with U.S.-born radical Islamic cleric Anwar al-Aulaqi. On one such computer, the FBI found at least seven issues of Inspire, an on-line English language magazine created by al-Aulaqi. One issue of this magazine contained an article entitled, “Make a Bomb in the Kitchen of your Mom,” which included instructions for building the explosive devices used in the Boston Marathon bombings.

Information learned through the exploitation of the Tsarnaev’s computers was obtained through a method that may only be used in the course of a full investigation, which the FBI did not open until after the bombings.

The FBI claims they could only find the stuff on Tamerlan’s computer using methods available in full investigations (this makes me wonder whether the FBI uses FISA physical search warrants to remotely search computer hard drives).

But that says nothing about what NSA (or even FBI, back in the day when they had the full time tap on Awlaki, though it’s unclear what kind of monitoring of his content they’ve done since the government killed him) might have gotten via a range of means, including, potentially, upstream searches on the encryption code for Inspire.

In other words, there’s good reason to believe — and the IC IG seems to claim — that the government had the evidence to know that Tamerlan was engaging in a bunch of reprehensible speech before he attacked the Boston Marathon, but they may not have reviewed it.

Let me be clear: it’s one thing to know a young man is engaging in reprehensible but purportedly protected speech, and another to know he’s going to attack a sporting event.

Except that this purportedly protected speech is precisely — almost exactly — the kind of behavior that has led FBI to sic multiple informants and/or undercover officers on other young men, including Adel Daoud and Mohamed Osman Mohamud, even in the absence of a warning from a foreign government.

And they didn’t here.

Part of the issue likely stems from communication failures between FBI and NSA. The IG report notes that “the relationship between the FBI and the NSA” was one of the most relevant relationships for this investigation. Did FBI (and CIA) never tell the NSA of the Russian warning? And clearly they never told NSA of his travel to Russia.

But part of the problem likely stems from the way NSA identifies leads — precisely the triaging process I examined here. That is, NSA is going to do more analysis on someone who communicates with people who are already targeted. Obviously, the ghost of Anwar al-Awlaki is one of the people targeted (though the numbers of young men who have Awlaki’s propaganda is likely huge, making that a rather weak identifier). The more interesting potential target would be William Plotnikov, the Canadian-Russian boxer turned extremist whom Tamerlan allegedly contacted in 2012 (and it may be this communication attempt is what NSA had in its possession but did not access until after the attacks). But I do wonder whether the NSA didn’t prioritize similar targets in countries of greater focus, like Yemen and Somalia.

It’d be nice to know the answer to these questions. It ought to be a central part of the debate over the NSA and its efficacy or lack thereof. But remember, in this case, the NSA was specifically scoped out of the heightened review (as happened after 9/11, which ended up hiding the good deal of warning the NSA had before the attack).

We’ve got a system that triggers on precisely the same kind of speech that Tamerlan Tsarnaev engaged in before he attacked the Marathon. But it didn’t trigger here.

Why not?

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.