Freedom of Association: From Six Degrees of Kevin Bacon to Three Degrees of Terry Stop

One thing the July 24, 2004 Colleen Kollar-Kotelly opinion and the May 23, 2006 phone dragnet application reveal is that the government and the court barely considered the First Amendment Freedom of Association implications of the dragnets.

The Kollar-Kotelly opinion reveals the judge sent a letter asking the government about “First Amendment issues.” (3) Way back on 57, she begins to consider First Amendment issues, but situates the in the querying of data, not the creation of a dragnet showing all relationships in the US.

In this case, the initial acquisition of information is not directed at facilities used by particular individuals of investigative interest, but meta data concerning the communications of such individuals’ [redacted]. Here, the legislative purpose is best effectuated at the querying state, since it will be at a point that an analyst queries the archived data that information concerning particular individuals will first be compiled and reviewed. Accordingly, the Court orders that NSA apply the following modification of its proposed criterion for querying the archived data: [redacted] will qualify as a seed [redacted] only if NSA concludes, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion that a particularly known [redacted] is associated with [redacted] provided, however, that an [redacted] believed to be used by a U.S. person shall not be regarded as associated with [redacted] solely on the basis of activities that are protected by the First Amendment to the Constitution. For example, an e-mail account used by a U.S. person could not be a seed account if the only information thought to support the belief that the account is associated with [redacted] is that, in sermons or in postings on a web site, the U.S. person espoused jihadist rhetoric that fell short of “advocacy … directed to inciting or producing imminent lawless action and … likely to incite or produce such action.” Brandnberg v. Ohio

By focusing on queries rather than collection, Kollar-Kotelly completely sidesteps the grave implications for forming databases of all the relationships in the US.

Then, 10 pages later, Kollar-Kotelly examines the First Amendment issues directly. She cites Reporters Committee for Freedom of the Press v. AT&T to lay out that in criminal investigations the government can get reporters’ toll records. Predictably, she says that since this application is “in furtherance of the compelling national interest of identifying and tracking [redacted terrorist reference], it makes it an easier case. Then, finally, she cites Paton v. La Prade to distinguish this from an much less intrusive practice, mail covers.

The court in Paton v. La Prade held that a mail cover on a dissident political organization violated the First Amendment because it was authorized under a regulation that was overbroad in its use of the undefined term “national security.” In contrast, this pen register/trap and trace surveillance does not target a political group and is authorized pursuant to statute on the grounds of relevance to an investigation to protect against “international terrorism,” a term defined at 50 U.S.C. § 1801(c). This definition has been upheld against a claim of First Amendment overbreadth. [citations omitted]

Of course, a mail cover is not automated and only affects the targeted party. This practice, by contrast, affects the targeted party (the selector) and anyone three hops out from him. Thus, even if those people are, in fact, a dissident organization (perhaps a conservative mosque), they in effect become criminalized by the association to someone only suspected — using the Terry Stop standard (the same used with stop-and-frisk) — of ties (but not even necessarily organizational ties) to terrorism.

Here’s how it looks in translation, in the 2006 application:

It bears emphasis that, given the types of analysis the NSA will perform, no information about a telephone number will ever be accessed or presented in an intelligible form to any person unless either (i) that telephone number has been in direct contact with a reasonably suspected terrorist-associated number or is linked to such a number through one or two intermediaries. (21)

So: queries require only a Terry Stop standard, and from that, mapping out everyone who is three degrees of association — whose very association with the person should be protected by the First Amendment — is fair game too.

Imagine if Ray Kelly had the authority to conduct an intrusive investigation into every single New Yorker who was three degrees of separation away from someone who had ever been stop-and-frisked. That’s what we’re talking about, only it happens in automated, secret fashion.

Univision’s Follow-Up Question

Univision’s Adriana Vargas just interviewed President Obama. After three questions about the immigration bill, she asked whether Obama would consider Ray Kelly to run Department of Homeland Security.

Obama, of course, was effusive about the idea of appointing Mr. Stop & Frisk to be in charge of the immigration system.

Vargas: Mr. President, New York Commissioner Ray Kelly has been floated for the next DHS Secretary. What is your take on it?

Obama: Well, Ray Kelly has obviously done an extraordinary job in New York and the federal government partners a lot with New York. Because obviously our concerns about terrorism oftentimes are focused on big city targets. And I think Ray Kelly is one of the best there is. So he’s been an outstanding leader in New York. We’ve had an outstanding leader in Janet Napolitano at the Department of Homeland Security. It’s a tough job. It’s one of the toughest jobs in Washington. She’s done an extraordinary job. We’re sorry to see her go. But you know, we’re going to have a bunch of strong candidates. Mr. Kelly might be very happy where he is. But if he’s not I’d want to know about it. ‘Cause you know, obviously he’d be very well qualified for the job.

Janet Napolitano? Outstanding leader.

Ray Kelly? Outstanding leader, according to Obama.

So Vargas then asked about a core DHS failure: Hurricane Sandy Recovery, where just a quarter of families have gotten FEMA relief (about half of the relief funding remains unallocated).

Obama boasts about spending a quarter of the disaster relief funds, then shifts the subject to Shawn Donovan.

AV: I have one last question regarding our geographical area of course and it’s regarding the efforts of recovery after Sandy. Only a quarter of the families have received FEMA resources. What would be your message to those families among them obviously a lot of Latino families?

PBO: Well, you know, we’ve distributed over $4 billion dollars since Sandy happened. $1.4 billion of that has been directly to families through FEMA. And we are continuing to not only try to get resources out. But also I’ve got a team headed up by Shaun Donovan, our Secretary of Housing and Urban Development to try to design a rebuilding process that strengthens these communities post-Sandy, so that if there are tragedies in the future they’re in a stronger position than they were. But, you know, individual families it’s always tough. Some may qualify for some assistance, but don’t feel like they’ve gotten everything that they need. You know, we’re doing as much as we can with the resources that we’ve been given from Congress. And we’re in close communication with Governor Christie and Governor Cuomo and all the local municipalities to do everything we can to help businesses and families get back on their feet. And we’re not going to stop until we get it done.

Obama’s “outstanding” head of Homeland Security, of course, is ultimately responsible for Sandy recovery.

And that’s apparently what he sees in Ray Kelly, too.

Chuck Schumer Must Want All American Brown Youth Stop and Frisked

I thought Chuck Todd was speculating in that beltway fashion when he said he had heard people suggest Ray Kelly should replace Janet Napolitano as Department of Homeland Security Secretary.

But apparently, Chuck Schumer actually thinks it’s a good idea.

It’s leader needs to be someone who knows law enforcement, understands anti-terrorism efforts, and is a top-notch administrator, and at the NYPD, Ray Kelly has proven that he excels in all three.  As a former head of the Customs and Border patrol, he has top-level federal management experience. There is no doubt Ray Kelly would be a great DHS Secretary, and I have urged the White House to very seriously consider his candidacy.

Not only is this a batshit crazy idea because of all the authoritarian things Ray Kelly has done in NYC, from harassing hundreds of thousands of African American and Latino youths to spying on Muslims.

But note how Schumer doesn’t mention the other, equally important part of Homeland Security: keeping the country safe from things like Chinese hackers and natural disasters.

How’d Kelly do at organizing a response to Hurricane Sandy? Maybe we should ask Occupy Sandy about that?

Who Was the Short-Sighted Personnel Guy at CIA Who Set up NYPD-on-the-Hudson in 2002?

As Charlie Savage reports, the CIA’s IG report on CIA-on-the-Hudson has finally been released. It finds that the decision to put CIA personnel at NYPD was ill-advised and poorly managed by CIA’s executives who oversaw the arrangement.

While negative public perception is to be expected from the revelation of the Agency’s close and direct collaboration with any local domestic police department, a perception that the Agency has exceeded its authorities diminishes the trust placed in the organization. This has the added potential of impeding our ability to effectively support law enforcement at both the local and federal level. Additionally, the risk that CIA officers could become involved in law enforcement matters exists if implementing procedures and policies to designed such collaboration are not clearly understood. A lapse in any one of these components has the potential to make Agency officers vulnerable and could jeopardize the vital mission the Agency performs.


The revelation of these issues, as discussed in more detail in the Executive Summary, leads me to conclude that the risks associated with the Agency’s relationship with NYPD were not fully considered and that there was inadequate direction and control by the Agency managers responsible for the relationship. [my emphasis]

Amid descriptions of violations of protections for Americans, the report describes basic personnel problems with the arrangement.

In addition, there appears to have been no documentation between CIA and NYPD addressing specifically the employee’s role concerning access to NYPD records and the practices to be followed with respect to the sharing of lead information.


… better documentation of the arrangement, practices, and appropriate approvals was warranted.

Unfortunately, the report does not name all the “senior CIA managers” who first implemented such an ill-considered program — it only says the first CIA officer was sent under George Tenet’s authority.

In early 2002, senior CIA management received requests for increased Intelligence Community (IC) support from federal, state, and local law enforcement, to include the NYPD. A Concept of Operations (CONOP) was developed by senior Agency officers in April 2002 for a temporary duty assignment (TDY) of a seasoned Directorate of Intelligence (DI) analyst to New York City for a six to nine month period under Director of Central Intelligence Authorities. 1

1 … DCI Tenet directed [redacted–AP reported this as Larry Sanchez] to New York City in 2002 under his DCI authorities as manager of the intelligence community.

Sanchez would be there from June 4, 2002 to March 2004, after which he took Leave without Pay and served at the NYPD full time until May 2009.

Sanchez believed he had “no restrictions” as to what he could and couldn’t do at NYPD.

The report makes it clear Sanchez served as a cop during the 5 years he was at NYPD while on LWOP. It doesn’t explain what he did in the first 2 years there, when he was still officially at the CIA, during which time — the report makes clear — serving as a cop would have violated restrictions on CIA officers serving as law enforcement.

Now, the report provides more details about how two of the other three CIA officers shared with the NYPD got sent. It names titles — Associate Deputy Director, Director of National Clandestine Services, Senior Deputy General Counsel as being involve d in the later decisions. It decides a Memorandum of Notification and warnings against engaging in domestic law enforcement (though that didn’t stop the person in question from filtering up to 12 reports a day up to CIA). For the third (whose transfer didn’t have that kind of guidance), names are named, including that of Deputy Director Mike Morell and Director/NCS John Bennett.

In short, Sanchez’s assignment may or may not have been as bad when, for a period in 2008, CIA was getting direct access to NYPD’s domestic intelligence reports. But at least from this review it seems like his assignment was one of the biggest clusterfucks from a management perspective.

You know? From the period when John Brennan was Deputy Executive Director at the CIA, “focused on administrative and workforce issues.” The same John Brennan who, after these practices were exposed, insisted he was “intimately familiar” with the program but that the CIA “knew what the rules were” — rules that, particularly for Sanchez while Brennan was still DExDir, simply weren’t in place.

Brennan’s potential role in this clusterfuck is all the more interesting given the timing of the report. It was written while he was the President’s top counterterrorism advisor. EPIC FOIAed the document March 28, 2012. CIA denied it expedited processing. So EPIC sued on December 20, 2012. CIA asked for one one week delay a few weeks after Brennan was confirmed Director.

And now this comes out, the day before Brennan heads to the Senate Intelligence Committee to tell them their 6,000 page report on torture is wrong.

It sure sounds like a report held to avoid embarrassing Brennan.

But don’t worry. We didn’t need to have any public airing of Brennan’s role — aside from his vague admission he knew about the program — before he got the authority to replicate the program elsewhere.

In superb news, late last night, the NYC City Council passed, with veto proof majorities, two bills that would provide real oversight for the NYPD.

Facebook a Better Spook than Ray Kelly

We have been discussing the FBI’s apparent inability to use the multiple images of the Tsarnaev brothers from the Boston Marathon to ID them using facial recognition software.

So I wanted to circle back to two things. First, point to the passage of BoGlo’s comprehensive account of the hunt for the brothers that pertains to this question.

Of note, it says photo analysts had isolated the video of Dzhokhar dropping his backpack by Wednesday morning.

When Alben, of the State Police, saw the results of the analysts’ work on Wednesday morning, he couldn’t believe it: they had captured an image of the young man in a white hat dropping a backpack outside the Forum restaurant and then walking away.

“There was a eureka moment . . . It was right there for you to see,” said the colonel. “It was quite clear to me we had a breakthrough in the case.”

They had faces. Now they needed names.

The account remains unclear about why the FBI was unable to match the images, relying on speculation about the quality of the images.

Even after authorities isolated the images of the two suspected bombers, they weren’t able to pinpoint the suspects’ identities — an essential puzzle piece that was still missing Wednesday.

The FBI has poured millions of dollars into facial recognition technology over the years so it can quickly cross-check an image against millions of other pictures in government databases.

In this case, both brothers were already in existing government databases, including the Massachusetts Registry of Motor Vehicles and federal immigration records. They were legal immigrants from the former Soviet republic of Kyrgyzstan, in theory allowing the FBI to find their names.

But it’s not clear which databases the FBI checked. And it may not have mattered. The pictures, taken from surveillance cameras above street level, were likely far too grainy when zoomed in on the brothers’ faces. And the older brother was wearing sunglasses, making their task even harder.

In addition, unlike in a traditional mug shot, the camera wasn’t looking at their faces head-on.

Investigators worked feverishly Wednesday trying to identify the men, searching other photos and video, trying to find high-definition images.

“We still needed more clarity,” said Alben, of the State Police. “As good as the videos were, we needed more clarity.”

And in the middle of this account, BoGlo suggests that briefing Deval Patrick about being able to ID the face of the suspect led directly to the mistaken press reports — based on solid sources, the outlets insisted at the time — that authorities were ready to arrest a suspect.

Colonel Alben, the State Police chief, briefed Patrick on Wednesday about the key piece of video showing Dzhokhar abandoning his backpack. Alben described the clip and showed the governor photographs culled from the footage, information that Patrick called “chilling.”

“We have a break,” Patrick remembers him saying. “We think we have a face.”

If further proof was needed that the city was on edge, the anxiety soon spilled over into view. By 1 p.m., news reports began surfacing that a suspect had been not only identified but arrested, and was headed to the federal courthouse.

I’m still not satisfied with this explanation (and do hope Congress does some hearings on why facial recognition software failed to fulfill its promise, if in fact it did). But it does seem to suggest the FBI had solid images of the brothers for 18 hours before they released them to the public (a decision made by the FBI, the BoGlo reports) and set off the manhunt that shut down the city.

Also, remember our questions about Ray Kelly’s boast of having pictures of the Dzhokhar in Times Square, as the law enforcement community tried to use a half-baked plan to escape to New York and set off pressure cooker bombs in Times Square?

Read more

Was There Even a BB Gun?

Over the weekend, we heard the story that when Tamerlan Tsarnaev rushed the small group of cops who were trying to arrest him, he was strapped with a suicide vest. In addition, we were told, the brothers had two handguns, an M-4 rifle, and a BB gun. The brothers, we were told, were planning further attacks.

At this point, the support for the claim Tamerlan had a suicide vest has disappeared (as it should have as soon as his brother ran over him with the SUV, though that detail, too, may not be entirely true). Ray Kelly — who never met a fear he didn’t want to magnify — tells us the brothers were headed out not to conduct further attacks, but to party in NYC. And according to the AP, just one handgun was found at the site of the shootout, and none was found on Dzhokhar when he was arrested.

Officials also recovered a 9 mm handgun believed to have been used by Tamerlan from the site of an April 18 gunbattle that injured a Massachusetts Bay Transportation Authority officer, two U.S. officials said.

The officials told the AP that no gun was found in the boat where Dzhokhar was hiding. Boston police Commissioner Ed Davis said earlier that shots were fired from inside the boat.

Asked whether the suspect had a gun in the boat, Davis said, “I’m not going to talk about that.”

But Kurt Schwartz, director of the Massachusetts Emergency Management Agency, said a police officer was shot within half a mile of where Tsarnaev was captured, “and I know who shot him.”

Authorities had previously said Dzhokhar exchanged gunfire with them for more than an hour Friday night before they captured him inside a tarp-covered boat in a suburban Boston neighborhood backyard. But two U.S. officials said Wednesday that he was unarmed when captured, raising questions about the gunfire and how he was injured.

All that’s not to say the brothers weren’t dangerous. There is still the matter of the additional pressure cooker bomb thrown at the site of the shootout, and some pipe bombs thrown during the chase, some of which exploded. They had already shot a cop at point blank range, apparently in a failed attempt to get a second handgun (though, as the NYT version of this story makes clear, the video from that murder don’t even conclusively show that it was the brothers). The NYT even notes that Dzhokhar was not — as reported Friday — outside the search perimeter in Watertown, but within it.

But a number of the original details describing how dangerous the two were haven’t survived as the fog of the chase has lifted.

How much of that earlier picture arose from embarrassment that Dzhokhar escaped the police shootout, leading to the shutdown of all of Boston? How much of it arose from a long-cultivated image of what Islamic terrorists do, as distinct from what two disgruntled American immigrants might do?

Especially given Sean Collier’s murder, I’m not faulting the cops for being careful. But to what extent are we running from ghosts the terror industry has created over the last 10 years?

The Top Unmentioned Obama Replacement: Robert Mueller

A slew of second-term cabinet speculation articles have come out (National Journal, first posted before the election, and NYT and USAT today).

And while they seem to indicate Jack Lew is likely to replace TurboTaxTimmeh Geithner and Secretary of State will be the subject of active speculation for some time (with intriguing speculation that Howard Berman, who lost to Brad Sherman in CA, might be under consideration), one key role–albeit not of cabinet level–is missing:

FBI Director.

After all, Robert Mueller is already 2 years beyond his sell by date; Obama extended his term to get past the election (he said). And regardless of rank, the FBI Director is one of the most important figures in the increasingly powerful surveillance state.

And there have been some very troubling names mentioned in discussions to replace him, including NYPD’s Ray Kelly, who would really be the second incarnation of J Edgar Hoover’s abusive power. There had been speculation that Patrick Fitzgerald wanted the job, but his decision to join Skadden Arps just before the election suggests he knew he wasn’t going to get that job.

Particularly given Eric Holder’s apparent increasing doubt that he’ll stick around, we have the possibility of seeing something worse–all the capitulation we got from Holder in the first term, plus and FBI Director who has none of the claimed measure of Mueller (though I’ve always had my doubts about those claims).

A new FBI Director (which is guaranteed), particularly if it came with a new Attorney General, could either set a dramatic new course or harden in the old course. And I fear it is most likely to be the latter.

NYPD’s Search for Cafes in Which Terrorists Would Be Comfortable

It’s bad enough that the NYPD continues its Muslim spying program in spite of their Intelligence Division Chief’s admission that they have not derived a single lead from it. But look more closely at the astoundingly stupid rationalizations that Thomas Galati gave in his deposition for the program.

Galati imagines that if NYPD were ever faced with an imminent terrorist threat, the demographic mapping they had already done would allow them to figure out right away where the terrorist might go.

When we are faced with a threat or we have information about a threat that is present and we need to go out and we need to try and mitigate that threat, we have to be able to, at our fingertips, find what is the most likely location that that terrorist is going to go to and hide out amongst other people from the same country.

Let’s consider how this worked in practice the single time it might have applied.

When the FBI alerted the NYPD that Najibullah Zazi was heading back to NYC with the intent to blow up some subways, the NYPD knew exactly who to go to. They called Zazi’s Imam, Ahmad Wais Afzali, who not only knew him but had taught him and some of his accomplices. So that part worked.

What didn’t work is that Afzali promptly tipped off Zazi and his father, making it more difficult to develop a case against Zazi’s accomplices.

Media reports quoting anonymous FBI officials have suggested the NYPD botched the case when it showed a picture of Najibullah Zazi, the Denver shuttle-bus driver at the heart of the investigation, to Ahmed Afzali, a Queens Imam and sometime police informant. Afzali, the reports say, first called Zazi’s father Mohammed, then Najibullah himself, alerting them to the probe. The FBI, which had been monitoring the calls, was then forced to move immediately to arrest the Zazis — much sooner than it had planned.


When Zazi traveled to New York ahead of the anniversary of 9/11, the FBI as a precaution alerted the NYPD. That’s when officers from the NYPD’s intelligence unit consulted Afzali. “It looks like they did this on their own initiative — they really trusted this Imam,” says the law-enforcement official. “But if they’d consulted with the bureau first, they’d have been told not to talk to anybody.”

So far Galati’s logic works if you want to make sure terrorists are tipped off by their close associates.

But it gets worse.

Central to the Galati’s explanation for the NYPD’s retention of the content of conversations about events–such as a Quran-burning, in the passage below (or, presumably, opposition to a drone strike)–is that it provides insight into whether a terrorist would be “comfortable in” a particularly environment.

Q I think you’ve told me that the fact that at this particular location where there are Pakistanis speaking Urdu, the Zone Assessment Unit heard two men complaining about the [redacted-Quran burning] That fact alone, their complaint expressed to each other doesn’t make it more likely that this is a place where a terrorist would go?

A It doesn’t make it more likely or less likely. It’s a tool for us to look for that person that we’re looking for that has that same characteristic that’s going to hide or recruit within a place that he or she is comfortable in.

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If FBI Believes NYPD Spying Violates Americans’ Rights, Why Not Stop It?

It has long been clear that the AP series on the NYPD’s spying on NYC’s Muslims relied, in part, on FBI sources who believed the program to be problematic. Now a new edition of Ronald Kessler’s book on the voices that belief explicitly.

“What never came out is that the FBI considers the NYPD’s intelligence gathering practices since 9/11 not only a waste of money but a violation of Americans’ rights,” wrote Kessler, who in April broke news of Colombian sexcapades by Secret Service agents doing advance work for President Obama.

“We will not be a party to it,” an FBI source told Kessler.

This anonymous leaking comes not from some ACLU hippies–it comes from the FBI. So why don’t these leakers go arrest Ray Kelly?

Aside from the endorsement of the program Robert Mueller and John Brennan have given, I mean?

The White House added its stamp of approval a month later when President Obama’s top counterterrorism adviser John Brennan visited police headquarters.

“I have full confidence that the NYPD is doing things consistent with the law, and it’s something that again has been responsible for keeping this city safe over the past decade,” he said.

Remember, Brennan–who was Deputy Executive Director of CIA when CIA helped to set up the CIA-on-the-Hudson–has boasted of intimate familiarity with the program.

Speaking of John Brennan, today is the 10 year anniversary of the torture memos. You know, torture? Another abuse that has never been prosecuted under Obama?

Did NYPD Manufacture a Murder Tie to Occupy Wall Street because Its Terror Myth Is Dying?

Let’s start with this. NYPD got its ass handed to it yesterday.

Specifically, Justin Elliott provided the definitive debunking of Mike Bloomberg and Ray Kelly’s repeated claims that their multimillion dollar Muslim profiling program has done anything to thwart the 14–or rather 3–terrorist attacks on NY since 9/11.

That wasn’t the end of the ass-handing, though. After Elliott’s piece, NYPD’s spokesperson Paul Browne started trolling Elliott’s comments, pretending the NYPD hadn’t repeatedly claimed to have stopped 14–or rather 3–terrorist attacks with their vast counterterrroism apparatus.

Elliott debunked that, too.

Mayor Mike, meanwhile, was backtracking–or perhaps forwardtracking–wildly, in another attempt to pretend the NYPD’s core terror myth wasn’t a carefully crafted myth.

And Ray Kelly? He hasn’t been seen to ask him about this ass-handing; maybe he was crying in a bar somewhere?

Meanwhile, last night, during the All Star Game, a new myth started.

Murder! DNA! Occupy Wall Street!

Starting with NBC, followed by a slew of other predominantly NY outlets, the press reported a flimsy story–sourced to law enforcement–claiming that DNA found on a chain left at an Occupy-related protest earlier this year matched DNA found at the site of a murder of a Pretty White Woman. Read more