I wanted to provide some background of how we got to this week’s PATRIOT Reauthorization debate to explain what I believe the surveillance boosters are really aiming for. Rather than a response to Edward Snowden, I think it is more useful to consider “reform” as an Intelligence Community effort to recreate functionalities they had and then lost in 2009.
That history starts in 2009, when NSA was still operating under the system they had established under Stellar Wind while pretending to abide by FISC rules.
At the beginning of 2009, the NSA had probably close to full coverage of phone records in the US, and coverage on the most important Internet circuits as well. Contrary to the explicit orders of the FISC, NSA was treating all this data as EO 12333 data, not PATRIOT data.
On the Internet side, it was acquiring data that it considered Dialing, Routing, Addressing, and Signaling information but which also constituted content (and which violated the category limits Colleen Kollar-Kotelly had first imposed).
On the phone side, NSA was not only treating PATRIOT data according to NSA’s more general minimization procedures as opposed to those dictated by the FISC. But in violation of those minimization procedures, NSA was submitting phone dragnet data to all the automated procedures it submitted EO 12333 data to, which included automated searches and automatic chaining on other identifiers believed to belong to the same user (the latter of which NSA calls “correlations”). Either these procedures consisted of — or the data was also treated to — pattern analysis, chaining users on patterns rather than calls made. Of key importance, one point of having all the data in the country was to be able to run this pattern analysis. Until 2008 (and really until 2009) they were sharing the results of this data in real time.
Having both types of data allowed the NSA to chain across both telephony and Internet data (obtained under a range of authorities) in the same query, which would give them a pretty comprehensive picture of all the communications a target was engaging in, regardless of medium.
I believe this bucolic state is where the surveillance hawks want us to return to. Indeed, to a large extent that’s what Richard Burr’s bill does (with a lot of obstructive measures to make sure this process never gets exposed again).
But when DOJ disclosed the phone violations to FISC in early 2009, they shut down all those automatic processes. And Judge Reggie Walton took over 6 months before he’d even let NSA have full ability to query the data.
Then, probably in October 2009, DOJ finally confessed to FISC that every single record NSA had collected under the Internet dragnet for five years violated Kollar-Kotelly’s category rules. Walton probably shut down the dragnet on October 30, 2009, and it remained shut down until around July 2010.
At this point, not only didn’t NSA have domestic coverage that included Internet and phone, but the phone dragnet was a lot less useful than all the other phone data NSA collected because NSA couldn’t use its nifty automatic tools on it.
We know that NSA convinced John Bates to not only turn the Internet dragnet back on around July 2010 (though it took a while before they actually turned it on), but to expand collection to some or all circuits in the US. He permitted that by interpreting anything that might be Dialing, Routing, Addressing, and Signaling (DRAS) to be metadata, regardless of whether it also was content, and by pointing back to the phone dragnet to justify the extension of the Internet dragnet. Bates’ fix was short-lived, however, because by 2011, NSA shut down that dragnet. I wildarseguess that may partly because DOJ knew it was still collecting content, and when Bates told NSA if it knew it was collecting content with upstream collection, it would be illegal (NSA destroyed the Internet dragnet data at the same time it decided to start destroying its illegal upstream data). I also think there may have been a problem with Bates’ redefinition of DRAS, because Richard Burr explicitly adopted Bates’ definition in his bill, which would have given Bates’ 2010 opinion congressional sanction. As far as we know, NSA has been coping without the domestic Internet dragnet by collecting on US person Internet data overseas, as well as off PRISM targets.
Remember, any residual problems the Internet dragnet had may have affected NSA’s ability to collect any IP-based calls or at least messaging.
Meanwhile, NSA was trying to replace the automated functions it had up until 2009, and on November 8, 2012, the NSA finally authorized a way to do that. But over the next year plus, NSA never managed to turn it on.
Meanwhile, the phone dragnet was collecting less and less of the data out there. My current theory is that the gap arose because of two things involving Verizon. First, in 2009, part or all of Verizon dropped its contract with the FBI to provide enhanced call records first set up in 2002. This meant it no longer had all its data collected in a way that was useful to FBI that it could use to provide CDRs (though Verizon had already changed the way it complied with phone records in 2007, which had, by itself, created some technical issues). In addition, I suspect that as Verizon moved to 4G technology it didn’t keep the same kind of records for 4G calls that transited its backbone (which is where the records come from, not from customer bills). The problems with the Internet dragnet may have exacerbated this (and in any case, the phone dragnet orders only ask for telephony metadata, not IP metadata).
Once you lose cell calls transiting Verizon’s backbone, you’ve got a big hole in the system.
At the same time, more and more people (and, disproportionately, terrorist targets) were relying more and more on IP-based communications — Skype, especially, but also texting and other VOIP calls. And while AT&T gets some of what crosses its backbone (and had and still has a contract for that enhanced call record service with the FBI, which means it will be accessible), a lot of that would not be available as telephony. Again, any limits on Internet collection may also impact IP based calls and messaging.
Which brings you to where the dragnets were in 2013, when Edward Snowden alerted us to their presence. The domestic PATRIOT-authorized Internet dragnet had been shut down (and with it, potentially, Internet-based calls and messaging). The phone dragnet still operated, but there were significant gaps in what the telecoms would or could turn over (though I suspect NSA still has full coverage of data that transits AT&T’s backbone). And that data couldn’t be subjected to all the nifty kinds of analysis NSA liked to subject call data to. Plus, complying with the FISC-imposed minimization procedures meant NSA could only share query results in limited situations and even then with some bureaucratic limits. Finally, it could only be used for counterterrorism programs, and such data analysis had become a critical part of all of NSA’s analysis, even including US collection.
And this is where I suspect all those stories about NSA already considering, in 2009 and in 2013, shutting down the dragnet. As both Ken Dilanian stories on this make clear, DOJ believed they could not achieve the same search results without a new law passed by Congress. Bob Litt has said the same publicly. Which makes it clear these are not plain old phone records.
So while Edward Snowden was a huge pain in the ass for the IC, he also provided the impetus to make a decision on the phone dragnet. Obama made a big show of listening to his Presidential Review Group and PCLOB, both of which said to get rid of it (the latter of which said it was not authorized by Section 215). But — as I noted at the time — moving to providers would fix some of their problems.
In their ideal world, here’s what we know the IC would like:
And the IC wants this while retaining Section 215’s use of bulky collections that can be cross-referenced with other data, especially the other Internet collection it conducts using Section 215, which makes up a majority of Section 215 orders.
Those 5 categories are how I’ve been analyzing the various solutions (which is one of about 10 reasons I’m so certain that Mitch McConnell would never want straight reauthorization, because there’s nothing that straight reauthorization would have ratified that would have fixed the existing problems with the dragnet), while keeping in mind that as currently constructed, the Internet 215 collection is far more important to the IC than the phone dragnet.
USA F-ReDux, as currently incarnated, would vastly expand data sharing, because data would come in through FBI (as PRISM data does) and FBI metadata rules are very permissive. And it would give collection on telephony and IP-based calls (probably not from all entities, but probably from Apple, Google, and Microsoft). It would not permit use for all intelligence purposes. And it is unclear how many of NSA’s analytical tools they’d be able to use (I believe they’d have access to the “correlations” function directly, because providers would have access internally to customers’ other accounts, but with the House report, other kinds of analysis should be prohibited, though who knows what AT&T and Microsoft would do with immunity). The House report clearly envisions federated queries, but they would be awkward to integrate with the outsourced collection.
Burr’s bill, on the other hand, would expand provider based querying to all intelligence uses. But even before querying might — maybe — probably wouldn’t — move to providers in 2 years, Burr’s bill would have immediately permitted NSA to obtain all the things they’d need to return to the 2009 bucolic era where US collected data had the same treatment as EO 12333 collected data. And Burr’s bill would probably permit federated queries with all other NSA data. This is why, I think, he adopted EO 12333 minimization procedures, which are far more restrictive than what will happen when data comes in via FBI, because since it will continue to come in in bulk, it needs to have an NSA minimization procedure. Burr’s bill would also sneak the Section 215 Internet collection back into NSL production, making that data more promiscuously available as well.
In other words, this is why so many hawks in the House are happy to have USA F-ReDux: because it is vastly better than the status quo. But it’s also why so many hawks in the Senate are unsatisfied with it: because it doesn’t let the IC do the other things — some of the analytical work and easy federated queries — that they’d like, across all intelligence functions. (Ironically, that means even while they’re squawking about ISIS, the capabilities they’d really like under Burr’s bill involve entirely other kinds of targets.)
A lot of the debate about a phone dragnet fix has focused on other aspects of the bill — on transparency and reporting and so on. And while I think those things do matter (the IC clearly wants to minimize those extras, and had gutted many of them even in last year’s bill), what really matters are those 5 functionalities.
Marco Rubio, who is running for President as an authoritarian, claims that “There is not a single documented case of abuse of this program.”
He’s not alone. One after another defender of the dragnet make such claims. FBI witnesses who were asked specifically about abuses in 2011 claimed FBI did not know of any abuses (even though FBI Director Robert Mueller had had to justify FBI’s use of the program to get it turned back on after abuses discovered in 2009).
Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?
A — To the FBI’s knowledge, those authorities have not been abused.
Though Section 215 boosters tend to get sort of squishy on their vocabulary, changing language about whether this was illegal, unconstitutional, or abusive.
Here’s what we actually know about the abuses, illegality, and unconstitutionality of Section 215, both the phone dragnet program and Section 215 more generally.
First, here’s what judges have said about the program:
1) The phone dragnet has been reapproved around 41 times by at least 17 different FISC judges
The government points to this detail as justification for the program. It’s worth noting, however, that FISC didn’t get around to writing an opinion assessing the program legally until 10 judges and 34 orders in. Since Snowden exposed the program, the FISC appears to have made a concerted effort to have new judges sign off on each new opinion.
2) Three Article III courts have upheld the program:
Judges William Pauley and Lynn Winmill upheld the constitutionality of the program (but did not asses the legality of it); though Pauley was reversed on statutory, not constitutional grounds. Judge Jeffrey Miller upheld the use of Section 215 evidence against Basaaly Moalin on constitutional grounds.
3) One Article III court — Judge Richard Leon in Klayman v. Obama — found the program unconstitutional.
4) The Second Circuit (along with PCLOB, including retired Circuit Court judge Patricia Wald, though they’re not a court), found the program not authorized by statute.
The latter decision, of course, is thus far the binding one. And the 2nd Circuit has suggested that if it has to consider the program on constitution grounds, it might well find it unconstitutional as well.
1) As DOJ’s IG confirmed yesterday, for most of the life of the phone dragnet (September 2006 through November 2013), the FBI flouted a mandate imposed by Congress in 2006 to adopt Section 215-specific minimization procedures that would give Americans additional protections under the provision (note–this affects all Section 215 programs, not just the phone dragnet). While, after a few years, FISC started imposing its own minimization procedures and reporting requirements (and rejected proposed minimization procedures in 2010), it nevertheless kept approving Section 215 orders.
In other words, in addition to being illegal (per the 2nd Circuit), the program also violated this part of the law for 7 years.
2) Along with all the violations of minimization procedures imposed by FISC discovered in 2009, the NSA admitted that it had been tracking roughly 3,000 presumed US persons against data collected under Section 215 without first certifying that they weren’t targeted on the basis of First Amendment protected activities, as required by the statute.
Between 24 May 2006 and 2 February 2009, NSA Homeland Mission Coordinators (HMCs) or their predecessors concluded that approximately 3,000 domestic telephone identifiers reported to Intelligence Community agencies satisfied the RAS standard and could be used as seed identifiers. However, at the time these domestic telephone identifiers were designated as RAS-approved, NSA’s OGC had not reviewed and approved their use as “seeds” as required by the Court’s Orders. NSA remedied this compliance incident by re-designating all such telephone identifiers as non RAS-approved for use as seed identifiers in early February 2009. NSA verified that although some of the 3,000 domestic identifiers generated alerts as a result of the Telephony Activity Detection Process discussed above, none of those alerts resulted in reports to Intelligence Community agencies.
NSA did not fix this problem by reviewing the basis for their targeting; instead, it simply moved these US person identifiers back onto the EO 12333 only list.
While we don’t have the background explanation, in the last year, FISC reiterated that the government must give First Amendment review before targeting people under Emergency Provisions. If so, that would reflect the second time where close FISC review led the government to admit it wasn’t doing proper First Amendment reviews, which may reflect a more systematic problem. That would not be surprising, since the government has already been chipping away at that First Amendment review via specific orders.
1) The best known abuses of minimization procedures imposed by the FISC were disclosed to the FISC in 2009. The main item disclosed involved the fact that NSA had been abusing the term “archive” to create a pre-archive search against identifiers not approved for search. While NSA claimed this problem arose because no one person knew what the requirements were, in point of fact, NSA’s Inspector General warned that this alert function should be disclosed to FISC, and it was a function from the Stellar Wind program that NSA simply did not turn off when FISC set new requirements when it rubber-stamped the program.
But there were a slew of other violations of FISC-imposed minimization procedures disclosed at that time, almost all arising because NSA treated 215 data just like it treats EO 12333, in spite of FISC’s clear requirements that such data be treated with additional protections. That includes making query results available to CIA and FBI, the use of automatic search functions, and including querying on any “correlated” identifiers. These violations, in sum, are very instructive for the USA F-ReDux debate because NSA has never managed to turn these automated processes back on since, and one thing they presumably hope to gain out of moving data to the providers is to better automate the process.
2) A potentially far more egregious abuse of minimization procedures was discovered (and disclosed) in 2012, when NSA discovered that raw data NSA’s techs were using over 3,000 files of phone dragnet data on their technical server past the destruction date.
As of 16 February 2012, NSA determined that approximately 3,032 files containing call detail records potentially collected pursuant to prior BR Orders were retained on a server and been collected more than five years ago in violation of the 5-year retention period established for BR collection. Specifically, these files were retained on a server used by technical personnel working with the Business Records metadata to maintain documentation of provider feed data formats and performed background analysis to document why certain contact chaining rules were created. In addition to the BR work, this server also contains information related to the STELLARWIND program and files which do not appear to be related to either of these programs. NSA bases its determination that these files may be in violation of BR 11-191 because of the type of information contained in the files (i.e., call detail records), the access to the server by technical personnel who worked with the BR metadata, and the listed “creation date” for the files. It is possible that these files contain STELLARWIND data, despite the creation date. The STELLARWIND data could have been copied to this server, and that process could have changed the creation date to a timeframe that appears to indicate that they may contain BR metadata.
But rather than investigate this violation — rather than clarify how much data this entailed, whether it had been mingled with Stellar Wind data, whether any other violations had occurred — NSA destroyed the data.
In one incident, NSA technical personnel discovered a technical server with nearly 3,000 files containing call detail records that were more than five years old, but that had not been destroyed in accordance with the applicable retention rules. These files were among those used in connection with a migration of call detail records to a new system. Because a single file may contain more than one call detail record, and because the files were promptly destroyed by agency technical personnel, the NSA could not provide an estimate regarding the volume of calling records that were retained beyond the five-year limit. The technical server in question was not available to intelligence analysts.
From everything we’ve seen the tech and research functions are not audited, not even when they’re playing with raw data (which is, I guess, why SysAdmin Edward Snowden could walk away with so many records). So not only does this violation show that tech access to raw data falls outside of the compliance mechanisms laid out in minimization procedures (in part, with explicit permission), but that NSA doesn’t try very hard to track down very significant violations that happen.
Finally, while sloppiness on applications is not a legal violation, it does raise concerns about production under the statute. The IG Report reviewed just six case files which used Section 215 orders. Although the section is heavily redacted, there are reasons to be significantly concerned about four of those.
And that’s just what can be discerned from the unredacted bits.
Remember, too: the inaccuracies (as opposed to the material misstatement) were on minimization procedures. Which suggests FBI was either deceitful — or inattentive — to how it was complying with FISC-mandated minimization procedures designed to protect innocent Americans’ privacy.
And remember — all this is just Section 215. The legal violations under PRTT were far more egregious, and there are other known violations and misstatements to FISC on other programs.
This is a troubling program, one that several judges have found either unconstitutional or illegal.
In an column explicitly limited to the phone dragnet, Conor Friedersdorf pointed to a post I wrote about Section 215 generally and suggested I thought the phone dragnet was about to get hidden under a new authority.
Marcy Wheeler is suspicious that the Obama Administration is planning to continue the dragnet under different authorities.
But my post was about more that just the phone dragnet. It was about two things: First, the way that, rather than go “cold turkey” after it ended the Internet dragnet in 2011 as the AP had claimed, NSA had instead already started doing the same kind of collection using other authorities that — while they didn’t collect all US traffic — had more permissive rules for the tracking they were doing. That’s an instructive narrative for the phone dragnet amid discussions it might lapse, because it’s quite possible that the Intelligence Community will move to doing far less controlled tracking, albeit on fewer Americans, under a new approach.
In addition, I noted that there are already signs that the IC is doing what Keith Alexander said he could live with a year ago: ending the phone dragnet in exchange for cybersecurity information sharing. I raised that in light of increasing evidence that the majority of Section 215 orders are used for things related to cybersecurity (though possibly obtained by FBI, not NSA). If that’s correct, Alexander’s comment would make sense, because it would reflect that it is working cybersecurity investigations under protections — most notably, FISC-supervised minimization — all involved would rather get rid of.
Those two strands are important, taken together, for the debate about Section 215 expiration, because Section 215 is far more than the dragnet. And the singular focus of everyone — from the press to activists and definitely fostered by NatSec types leaking — on the phone dragnet as Section 215 sunset approaches makes it more likely the government will pull off some kind of shell game, moving the surveillances they care most about (that is, not the phone dragnet) under some new shell while using other authorities to accomplish what they need to sustain some kind of phone contact and connection chaining.
So in an effort to bring more nuance to the debate about Section 215 sunset, here is my best guess — and it is a guess — about what they’re doing with Section 215 and what other authorities they might be able to use to do the same collection.
Here are the known numbers on how Section 215 orders break out based on annual reports and this timeline.
Since its transfer under Section 215 in 2006, the phone dragnet has generally made up 4 or 5 orders a year (Reggie Walton imposed shorter renewal periods in 2009 as he was working through the problems in the program). 2009 is the one known year where many of the modified orders — which generally involve imposed minimization procedures — were phone dragnet orders.
We know that the government believes that if Section 215 were to sunset, it would still have authority to do the dragnet. Indeed, it not only has a still-active Jack Goldsmith memo from 2004 saying it can do the dragnet without any law, it sort of waved it around just before the USA Freedom Act debate last year as if to remind those paying attention that they didn’t necessarily think they needed USAF (in spite of comments from people like Bob Litt that they do need a new law to do what they’d like to do).
But that depends on telecoms being willing to turn over the dragnet data voluntarily. While we have every reason to believe AT&T does that, the government’s inability to obligate Verizon to turn over phone records in the form it wants them is probably part of the explanation for claims the current dragnet is not getting all the cell records of Americans.
A number of people — including, in part, Ron Wyden and other SSCI skeptics in a letter written last June — think the government could use FISA’s PRTT authority (which does not sunset) to replace Section 215, and while they certainly could get phone records using it, if they could use PRTT to get what it wants, they probably would have been doing so going back to 2006 (the difference in authority is that PRTT gets actual activity placed, whereas 215 can only get records maintained (and Verizon isn’t maintaining the records the government would like it to, and PRTT could not get 2 hops).
For calls based off a foreign RAS, the government could use PRISM to obtain the data, with the added benefit that using PRISM would include all the smart phone data — things like address books, video messaging, and location — that the government surely increasingly relies on. Using PRISM to collect Internet metadata is one of two ways the government replaced the PRTT Internet dragnet. The government couldn’t get 2 hops and couldn’t chain off of Americans, however.
I also suspect that telecoms’ embrace of supercookies may provide other options to get the smart phone data they’re probably increasingly interested in.
For data collected offshore, the government could use SPCMA, the other authority the government appears to have replaced the PRTT Internet dragnet with. We know that at least one of the location data programs NSA has tested out works with SPCMA, so that would offer the benefit of including location data in the dragnet. If cell phone location data is what has prevented the government from doing what they want to do with the existing phone dragnet, SPCMA’s ability to incorporate location would be a real plus for NSA, to the extent that this data is available (and cell phone likely has more offshore availability than land line).
The government could obtain individualized data using NSLs — and it continues to get not just “community of interest” (that is, at least one hop) from AT&T, but also 7 other things that go beyond ECPA that FBI doesn’t want us to know about. But using NSLs may suffer from a similar problem to the current dragnet, that providers only have to provide as much as ECPA requires. Thus, there, too, other providers are probably unwilling to provide as much data as AT&T.
Telecoms might be willing to provide data the government is currently getting under 215 under CISA and CISA collection won’t be tied in any way to ECPA definitions, though its application is a different topic, cybersecurity (plus leaks and IP theft) rather than terrorism. So one question I have is whether, because of the immunity and extended secrecy provisions of CISA, telecoms would be willing to stretch that?
In addition to the phone dragnet, FBI and other IC agencies seem to operate other dragnets under Section 215. It’s probably a decent guess that the 8-13 other 215 orders prior to 2009 were for such things. NYT and WSJ reported on a Western Union dragnet that would probably amount to 4-5 orders a year. Other items discussed involve hotel dragnets and explosives precursor dragnets, the latter of which would have been expanded after the 2009 Najibullah Zazi investigation. In other words, there might be up to 5 dragnets, each representing 4-5 orders a year (assuming they work on the same 90-day renewal cycle), so a total of around 22 of the roughly 175 orders a year that aren’t the phone dragnet (the higher numbers for 2006 are known to be combination orders both obtaining subscription data for PRTT orders and location data with a PRTT order; those uses stopped in part with the passage of PATRIOT reauthorization in 2006 and in part with FISC’s response to magistrate rulings on location data from that year).
Some of these dragnets could be obtained, in more limited fashion, with NSLs (NSLs currently require reporting on how many US persons are targeted, so we will know if they move larger dragnets to NSLs). Alternately, the FBI may be willing to do these under grand jury subpoenas or other orders, given the way they admitted they had done a Macy’s Frago Elite pressure cooker dragnet after the Boston Marathon attack. The three biggest restrictions on this usage would be timeliness (some NSLs might not be quick enough), the need to have a grand jury involved for some subpoenas, and data retention, but those are all probably manageable hurdles.
Finally, there is the Internet content — which we know makes up for a majority of Section 215 orders — that moved to that production from NSLs starting in 2009. It’s probably a conservative bet that over 100 of current dragnet orders are for this kind of content. And we know the modification numbers for 2009 through 2011 — and therefore, probably still — are tied to minimization procedure requirements imposed by the FISC.
A recent court document from a Nicholas Merrill lawsuit suggests this production likely includes URL and data flow requests. And the FBI has recently claimed –for what that’s worth — that they rely on Section 215 for cybersecurity investigations.
Now, for some reason, the government has always declined to revise ECPA to restore their ability to use NSLs to obtain this collection, which I suspect is because they don’t want the public to know how extensive the collection is (which is why they’re still gagging Merrill, 11 years after he got an NSL).
But the data here strongly suggests that going from NSL production to Section 215 production has not only involved more cumbersome application processes, but also added a minimization requirement.
And I guarantee you, FBI or NSA or whoever is doing this must hate that new requirement. Under NSLs, they could just horde data, as we know both love to do, the FBI even more so than the NSA. Under 215s, judges made them minimize it.
As I noted above, this is why I think Keith Alexander was willing to do a CISA for 215 swap. While CISA would require weak sauce Attorney General derived “privacy guidelines,” those would almost certainly be more lenient than what FISC orders, and wouldn’t come with a reporting requirement. Moreover, whereas at least for the phone dragnet, FISC has imposed very strict usage requirements (demanding that a counterterrorism dragnet be used only for counterterrorism purposes), CISA has unbelievably broad application once that data gets collected — not even requiring that terrorist usages be tied to international terrorism, which would seem to be a violation of the Keith Supreme Court precedent).
All of this is to suggest that for cybersecurity, IP theft, and leak investigations, CISA would offer FBI their ideal collection approach. It would certainly make sense that Alexander (or now, Admiral Mike Rogers and Jim Comey) would be willing to swap a phone dragnet they could largely achieve the same paltry results for using other authorities if they in exchange got to access cybersecurity data in a far, far more permissive way. That’d be a no-brainer.
There’s just one limitation on this formula, potentially a big one. CISA does not include any obligation. Providers may share data, but there is nothing in the bill to obligate them to do so. And to the extent that providers no longer provide this data under NSLs, it suggests they may have fought such permissive obligation in the past. It would seem that those same providers would be unwilling to share it willingly.
But my thoughts on CISA’s voluntary nature are for another post.
One final thought. If the government is contemplating some or all of this, then it represents an effort — one we saw in all versions of dragnet reform to greater (RuppRoge) or lesser degrees (USAF) — to bypass FISC. The government and its overseers clearly seem to think FISC-ordered minimization procedures are too restrictive, and so are increasingly (and have been, since 2009) attempting to replace the role played by an utterly dysfunctional secret court with one entirely within the Executive.
This is the reason why Section 215 sunset can’t be treated in a vacuum: because, to the extent that the government could do this in other authorities, it would largely involve bypassing what few restrictions exist on this spying. Sunsetting Section 215 would be great, but only if we could at the same time prevent the government from doing similar work with even fewer controls.
A new chapter by Professors Amos Guiora and Jeffrey Brand–“Establishment of a Drone Court: A Necessary Restraint on Executive Power“–has been receiving a fair amount ofmedia and blog attention. The chapter differs from some prior calls for a “drone court” in seeing the Foreign Intelligence Surveillance Court (FISC) not as a model, but rather as a lesson in what not to do–a “non-starter,” in the authors’ words. Nevertheless, the chapter argues, we need a special “Operational Security Court” (OSC) comprised of already sitting Article III district and circuit judges (selected through a far different process from FISC judges) to strike the right balance between the government’s need to protect operational (and national) security and the rights of those targeted for drone operations to contest their targeting (through security cleared lawyers) ex ante.
My take on the proposal is slightly different from Vladeck’s. I take it as a proposal for a Sparkle Pony. The proper response to such a proposal is to point out all the reasons why we can’t have Sparkle Ponies. But I would end up largely where Valdeck is, looking at all the reasons FISC is failing its task, especially now that it has been blown up beyond proportion in the wake of President Bush’s illegal spy program. And Vladeck’s solution — to ensure people can sue after the fact — is a reasonable start.
That said, Vladeck asks an important question.
Finally, there’s the question of why an entire new court(the “OSC”) is needed at all. What’s wrong with giving the U.S. District Court for the District of Columbia exclusive original jurisdiction over these proceedings–as the Supreme Court has effectively provided in the secrecy-laden Guantánamo habeas cases? Even if one believes that ex ante judicial review of drone strikes is constitutionally and pragmatically feasible, why reinvent the wheel when there are perfectly good judges sitting in a perfectly good courthouse replete with experience in highly classified proceedings?
In my insistence it’s time to get rid of FISC, I’ve been thinking the same thing: why can’t we just have all the DC District judges rule on these cases?
The biggest drawback I see in this is that it would mean the judges presiding over national security criminal cases — not even Espionage cases, which are more likely to be charged in EDVA — are not the same who preside over the National Security Court decisions. Just as an example, I think it important that a bunch of judges in Portland, OR are presiding over some of the more interesting national security cases. And for that reason I’m fascinated that Michael Mosman, who is presiding over the case of Reaz Qadir Khan, is also a FISC judge. While I don’t think Mosman brings a neutral approach to the Khan case, I do think he may be learning things about how the FISC programs work in practice.
But both sides of this debate, both the government and reformers, could point to Vladeck’s proposal as a vast improvement. That’s because it gets us out of what has become a series of one person courts.
Partly for logistical reasons (and potentially even for security reasons), rather than a court of 11 judges presiding over these expanding counterterrorism programs, we’ve actually had a series of single judges: Colleen Kollar-Kotelly, who presided over at least the Internet dragnet, some other important Pen Register rulings, and several initial Protect America Act reviews, then mostly Reggie Walton presiding over the Yahoo challenge and then the phone and Internet dragnet fixes, then John Bates presiding over the upstream fix (as well as reauthorizing and expanding the Internet dragnet). Presumably, presiding judge Thomas Hogan has assumed the role of one person court (though I suspect Rosemary Collyer, who is next in line to be presiding in any case, takes on some of this work).
And while I’d find great fault with some of Kollar-Kotelly and Bates’ rulings (and even some of Walton’s), I suspect the NatSec establishment was thrilled to see the end of Walton on the court, because he dared to consider questions thoughtfully and occasionally impose limits on the intelligence programs.
No one benefits from having what works out to be primarily one judge review such massive programs. But that’s what we’ve effectively got now, and because it operates in secret, there’s no apparent check on really boneheaded decisions by these individual judges.
There are a lot of reasons to replace the FISC with review by normal judges, and one of them is that the current system tends to concentrate the review of massive spying programs in the hands of one or two judges alone.
Charlie Savage is catching no end of shit today because he reported on a provision in the PATRIOT Act (one I just noticed Tuesday, actually, when finding the sunset language for something else) that specifies ongoing investigations may continue even after a sunset.
The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”
Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.
“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”
Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.
The exception is obscure because it was recorded as a note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.
Now, I’m happy to give Savage shit when I think he deserves it. But I’m confident those attacking him now are wrong.
Before I get into why, let me first say that to some degree it is moot. The Administration believes that, legally, it needs no Congressional authorization to carry out the phone dragnet. None. What limits its ability to engage in the phone dragnet is not the law (at least not until some courts start striking the Administration’s interpretation down). It’s the willingness of the telecoms to cooperate. Right now, the government appears to have a significant problem forcing Verizon to fully cooperate. Without Verizon, you don’t have an effective dragnet, which is significantly what USA Freedom and other “reform” efforts are about, to coerce or entice Verizon’s full cooperation without at the same time creating a legal basis to kill the entire program.
That said, not only is Davidson likely absolutely correct, but there’s precedent at the FISA Court for broadly approving grandfathering claims that make dubious sense.
As Davidson noted elsewhere in Savage’s story, the FBI has ongoing enterprise investigations that don’t lapse — and almost certainly have not lapsed since 9/11. Indeed, that’s the investigation(s) the government appears, from declassified documents, to have argued the dragnet is “relevant” to. So while some claim this perverts the definition of “particular,” that’s not the word that’s really at issue here, it’s the “relevant to” interpretation that USAF leaves intact, effectively ratifying (this time with uncontested full knowledge of Congress) the 2004 redefinition of it that everyone agrees was batshit insane. If you want to prevent this from happening, you need to affirmatively correct that FISA opinion, not to mention not ratify the definition again, which USAF would do (as would a straight reauthorization of PATRIOT next year).
And as I said, there is precedent for this kind of grandfathering at FISA, all now in the public record thanks to the declassification of the Yahoo challenge documents (and all probably known to Davidson, given that he was a lead negotiator on FISA Amendments Act which included significant discussion about sunset procedures, which they lifted from PAA.
For starters, on January 15, 2008, in an opinion approving the certifications for Protect America Act submitted in August and September 2007, Colleen Kollar-Kotelly approved the grand-fathering of the earlier 2007 large content dockets based on the government’s argument that they had generally considered the same factors they promised to follow under the PAA certifications and would subject the data obtained to the post-collection procedures in the certifications. (See page 15ff)
Effectively then, this permitted them to continue collection under the older, weaker protections, under near year-long PAA certifications.
In the weeks immediately following Kollar-Kotelly’s approval of the underlying certifications (though there’s evidence they had planned the move as far back as October, before they served Directives on Yahoo), the government significantly reorganized their FAA program, bringing FBI into a central role in the process and almost certainly setting up the back door searches that have become so controversial. They submitted new certifications on January 31, 2008, on what was supposed to be the original expiration date of the PAA. As Kollar-Kotelly described in an June 18, 2008 opinion (starting at 30), that came to her in the form of new procedures received on February 12, 2008, 4 days before the final expiration date of PAA.
On February 12, 2008, the government filed in each of the 07 Dockets additional sets of procedures used by the Federal Bureau of Investigation(FBI) when that agency acquires foreign intelligence information under PAA authorities. These procedures were adopted pursuant to amendments made by the Attorney General and the Director of National Intelligence (DNI) on January 31, 2008 to the certifications in the 07 Dockets.
Then, several weeks later — and therefore several weeks after PAA expired on February 16, 2008 — the government submitted still new procedures.
On March 3, 2008, the government submitted NSA and FBI procedures in a new matter [redacted]
Because the FBI and NSA procedures submitted in Docket No. [redacted] are quite similar to the procedures submitted in the 07 Dockets, the Court has consolidated these matters for purposes of its review under 50 U.S.C. § 1805c.
For the reasons explained below, the Court concludes that it retains jurisdiction to review the above-described procedures under §1805c. On the merits, the Court finds that the FBI procedures submitted in each of the 07 Dockets, and the NSA and FBI procedures submitted in Docket No. [redacted] satisfy the applicable review for clear error under 50 U.S.C. § 1805c(b).
She regarded these new procedures, submitted well after the law had expired, a modification of existing certifications.
In all [redacted] of the above-captioned dockets, the DNI and the Attorney General authorized acquisitions of foreign intelligence information by making or amending certifications prior to February 16, 2009, pursuant to provisions of the PAA codified at 50 U.S.C. § 1805b.
She did this in part by relying on Reggie Walton’s interim April 25, 2008 opinion in the Yahoo case that the revisions affecting Yahoo were still kosher, without, apparently, considering the very different status of procedures changed after the law had expired.
The government even considered itself to be spying with Yahoo under a September 2007 certification (that is, the latter of at least two certifications affecting Yahoo) past the July 10, 2008 passage of FISA Amendments Act, which imposed additional protections for US persons.
These are, admittedly, a slightly different case. In two cases, they amount to retaining older, less protective laws even after their replacement gets passed by Congress. In the third, it amounts to modifying procedures under a law that has already expired but remains active because of the later expiration date of the underlying certificate.
Still, this is all stuff the FISC has already approved.
The FISC also maintains — incorrectly in my opinion, but I’m not a FISC judge so they don’t much give a damn — that the 2010 and 2011 PATRIOT reauthorizations ratified everything the court had already approved, even the dragnets not explicitly laid out in the law. This sunset language was public, and there’s nothing exotic about what they say. To argue the FISC wouldn’t consider these valid clauses grand-fathering the dragnet, you’d have to argue they don’t believe the 2010 and 2011 reauthorizations ratified even the secret things already in place. That’s highly unlikely to happen, as it would bring the validity of their 40ish reauthorizations under question, which they’re not going to do.
Again, I think it’s moot. The “reform” process before us is about getting Verizon to engage in a dragnet that is not actually authorized by the law as written. They’re not doing what the government would like them to do now, so there’s no reason to believe this grandfathered language would lead them to suddenly do so.
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)
That line, from the FISCR opinion finding the Protect America Act constitutional, gets to the core problem with the FISA Court scheme. Even in 2009, when the line was first made public, it was pretty clear the government had made a false claim to the FISA Court of Review.
Now that we know that FBI had already been given authority to keep PAA-collected content in databases that they could search at what is now called the assessment stage of investigations — warrantless searches of the content of Americans against whom the FBI has no evidence of wrong-doing — the claim remains one of the signature moments where the government got approval for a program by being less than candid to the court (the government has been caught doing so in both Title III courts and at FISC, and continues to do so).
That’s also why I find Greg McNeal’s paper on Reforming the FISC, while very important, ultimately unconvincing.
McNeal’s paper is invaluable for the way he assesses the decision — in May 2006 — to authorize the collection of all phone records under Section 215. Not only does the paper largely agree with the Democratic appointees on PCLOB that the program is not authorized by the Section 215 statute, McNeal conducts his own assessment of the government’s application to use Section 215 for that purpose.
The application does not fare well.
Moreover, the government recognized that not all records would be relevant to an investigation, but justified relevance on what could best be described as usefulness or necessity to enable the government’s metadata analysis, stating:
The Application fully satisfies all requirements of title V of FISA. In particular, the Application seeks the production of tangible things “for” an international terrorism investigation. 50 U.S.C. § 1861(a)(1). In addition, the Application includes a statement of facts demonstrating that there are reasonable grounds to believe that the business records sought are “relevant” to an authorized investigation. Id. § 1861(b)(2). Although the call detail records of the [redacted] contain large volumes of metadata, the vast majority of which will not be terrorist-related, the scope of the business records request presents no infirmity under title V. All of the business records to be collected here are relevant to FBI investigations into [redacted] because the NSA can effectively conduct metadata analysis only if it has the data in bulk.49
The government went even further, arguing that if the FISC found that the records were not relevant, that the FISC should read relevance out of the statute by tailoring its analysis in a way that would balance the government’s request to collect metadata in bulk against the degree of intrusion into privacy interests. Disregarding the fact that the balancing of these interests was likely already engaged in by Congress when writing section 215, the government wrote:
In addition, even if the metadata from non-terrorist communications were deemed not relevant, nothing in title V of FISA demands that a request for the production of “any tangible things” under that provision collect only information that is strictly relevant to the international terrorism investigation at hand. Were the Court to require some tailoring to fit the information that will actually be terrorist-related, the business records request detailed in the Application would meet any proper test for reasonable tailoring. Any tailoring standard must be informed by a balancing of the government interest at stake against the degree of intrusion into any protected privacy interests. Here, the Government’s interest is the most compelling imaginable: the defense of the Nation in wartime from attacks that may take thousands of lives. On the other side of the balance, the intrusion is minimal. As the Supreme Court has held, there is no constitutionally protected interest in metadata, such as numbers dialed on a telephone.50
Thus, what the government asked the court to disregard the judgment of the Congress as to the limitations and privacy interests at stake in the collection of business records. Specifically, the government asked the FISC to disregard Congress’s imposition of a statutory requirement that business records be relevant, and in disregarding that statutory requirement rely on the fact that there was no constitutionally protected privacy interest in business records. The government’s argument flipped the statute on its head, as the purpose of enhancing protections under section 215 was to supplement the constitutional baseline protections for privacy that were deemed inadequate by Congress.
McNeal is no hippie. That he largely agrees and goes beyond PCLOB’s conclusion that this decision was not authorized by the statute is significant.
But as I said, I disagree with his remedy — and also with his assessment of the single source of this dysfunction.
McNeal’s remedy is laudable. He suggests all FISC decisions should be presumptively declassified and any significant FISC decision should get automatic appellate review, done by FISCR. That’s not dissimilar to a measure in Pat Leahy’s USA Freedom Act, which I’ve written about here. With my cautions about that scheme noted, I think McNeal’s remedy may have value.
The reason it won’t be enough stems from two things.
First, the government has proven it cannot be trusted with ex parte proceedings in the FISC. That may seem harsh, but the Yahoo challenge — which is the most complete view we’ve ever had of how the court works, even with a weak adversary — really damns the government’s conduct. In addition to the seemingly false claim to FISCR about whether the government held databases of incidentally collected data, over the course of the Yahoo challenge, the government,
In short, the materials withheld or misrepresented over the course of the Yahoo challenge may have made the difference in FISCR’s judgment that the program was legal (even ignoring all the things withheld from Yahoo, especially regarding the revised role of FBI in the process). (Note, in his paper, McNeal rightly argues Congress and the public could have had a clear idea of what Section 702 does; I’d limit that by noting that almost no one besides me imagined they were doing back door searches before that was revealed by the Snowden leaks).
One problem with McNeal’s suggestion, then, is that the government simply can’t be trusted to engage in ex parte proceedings before the FISC or FISCR. Every major program we’ve seen authorized by the court has featured significant misrepresentations about what the program really entailed. Every one! Until we eliminate that problem, the value of these courts will be limited.
But then there is the other problem, my own assessment of the source of the problem with FISC. McNeal thinks it is that Congress wants to pawn its authority off onto the FISC.
The underlying disease is that Congress wants things to operate the way that they do; Congress wants the FISC and has incentives to maintain the status quo.
Why does Congress want the FISC? Because it allows them to push accountability off to someone else. If members ofCongress are responsible for conducting oversight of secretoperations, their reputations are on the line if the operations gotoo far toward violating civil liberties, or not far enoughtoward protecting national security. However, with the FISC conducting operations, Congress has the ability to dodge accountability by claiming they have empowered a court to conduct oversight.
I don’t, in general, disagree with this sentiment in the least. The last thing Congress wants to do is make a decision that might later be tied to an intelligence failure, a terrorist attack, a botched operation. Heck, I’d add that the last thing most members of Congress serving on the Intelligence Committees would want to do is piss off the contractors whose donations provide one of the perks of the seat.
But the dysfunction of the FISC stems, in significant part, from something else.
In his paper on the phone dragnet (which partly incorporates the Internet dragnet), David Kris suggests the original decision to bring the dragnets under the FISC (in the paper he was limited by DOJ review about what he could say of the Internet dragnet, so it is not entirely clear whether he means the Colleen Kollar-Kotelly opinion that paved the way for the flawed Malcolm Howard one McNeal critiques, or the Howard one) was erroneous. Continue reading
Via Mike Masnick, I see that in addition to submitting a new state secrets declaration and a filing claiming EFF’s clients in Jewel v. NSA don’t have standing, the government also submitted a secret supplemental brief on its statement of authorities, which EFF has challenged.
The secret supplemental brief is interesting given the government’s outrageous state secrets claim in the lawsuit against United Against a Nuclear Iran, in which it refuses to explain why it must protect the intelligence sources and methods of an allegedly independent NGO. It seems the government’s state secrets claims are getting even more outrageous than they already were.
That’s particularly interesting given what appears to be the outlines of a claim that if the court recognizes Jewel’s standing, then all hell will break loose.
Due to the failings of Plaintiffs’ evidence described above, the Court need not consider the impact of the state secrets privilege on the standing issue. However, if the Court were to find Plaintiffs’ declarations admissible and sufficiently probative of Plaintiffs’ standing to raise a genuine issue meriting further inquiry (which it should not), adjudication f the standing issue could not proceed without risking exceptionally grave damage to national security (a threshold issue on which the Court requested briefing). That is so because operational details of Upstream collection that are subject to the DNI’s assertion of the state secrets privilege in this case are necessary to address Plaintiffs’ theory of standing. The Government presented this evidence to the Court in the DNI’s and NSA’s classified declarations of December 20, 2013, and supplements it with the Classified Declaration of Miriam P., NSA, submitted in camera, ex parte, herewith. Disclosure of this evidence would risk informing our Nation’s adversaries of the operational details of the NSA’s Upstream collection, including the identities of electronic-communications-service providers assisting with Upstream collection.
Behind these claims of grave harm are the reality that if US persons started to get standing under the dragnet, then under John Bates’ rules (in which illegal wiretapping is only illegal if the government knows US persons are targeted), the entire program would become illegal. So I suspect the government is ultimately arguing that Jewel can’t have standing because it would make the entire program illegal (which is sort of the point!).
But the biggest reason I’m intrigued by the government’s sneaky filing is because of what happened the last time it submitted such a sneaky filing.
I laid out in this post how a state secrets filing submitted in EFF’s related Shubert lawsuit by Keith Alexander on October 30, 2009 demonstrably lied. Go back and read it–it’s a good one. A lot of what I show involves Alexander downplaying the extent of the phone dragnet problems.
But we now know more about how much more Alexander was downplaying in that declaration.
As I show in this working thread, it is virtually certain that on September 30, 2009, Reggie Walton signed this order, effectively shutting down the Internet dragnet (I’m just now noticing that ODNI did not — as it has with the other FISC dragnet orders — release a copy with the timestamp that goes on all of these orders, which means we can’t determine what time of the day this was signed). Some time in the weeks before October 30, DOJ had submitted this notice, admitting that NSA had been violating the limits on “metadata” collection from the very start, effectively meaning it had been collecting content in the US for 5 years.
Precisely the kind of illegal dragnet Virginia Shubert was suing the government to prevent.
Mind you, there are hints of NSA’s Internet dragnet violations in Alexander’s declaration. In ¶59, Alexander says of the dragnet, “The FISC Telephone Business Records Order was most recently reauthorized on September 3, 2009, with authority continuing until October 30, 2009″ (Walton signed the October 30, 2009 phone dragnet order around 2:30 ET, which would be 11:30 in NDCA where this declaration was filed). In ¶58, he says, “The FISC Pen Register Order was most recently reauthorized on [redacted], 2009, and requires continued assistance by the providers through [redacted] 2009″ (this is a longer redaction than October 30 would take up, so it may reflect the 5PM shutdown Walton had imposed). So it may be that one of the redacted passages in Alexander’s declaration admitted that FISC had ordered the Internet dragnet shut down.
In addition, footnote 24 is quite long (note it carries onto a second page); particularly given that the tense used to describe the dragnets in the referenced paragraph differ (the Internet dragnet is in the past tense, the phone dragnet is in the present tense), it is possible Alexander admitted to both the compliance violation and that NSA had “voluntarily” stopped querying the dragnet data.
Further, in his later discussions, he refers to this data as “non-content metadata” and “records about communication transactions,” which may reflect a tacit (or prior) acknowledgment that the NSA had been collecting more than what, to the telecoms who were providing it, was legally metadata, or, if you will, was in fact “content as metadata.”
To the extent that the plaintiffs “dragnet” allegations also implicate other NSA activities, such as the bulk collection of non-content communications meta data or the collection of communications records, see, e.g., Amended Compl ¶58, addressing their assertions would require disclosure of NSA sources and methods that would cause exceptionally grave harm to national security.
Accordingly, adjudication of plaintiffs’ allegations concerning the collection of non-content meta data and records about communication transactions would risk or require disclosure of critical NSA sources and methods for [redacted] contacts of terrorist communications as well as the existence of current NSA activities under FISC Orders. Despite media speculation about those activities, official confirmation and disclosure of the NSA’s bulk collection and targeted analysis of telephony meta data would confirm to all of our foreign adversaries [redacted] the existence of these critical intelligence capabilities and thereby severely undermine NSA’s ability to gather information concerning terrorist connections and cause exceptionally grave harm to national security.
So it seems that Alexander provided some glimpse to Vaughn Walker of the troubles with the Internet dragnet program. So when after several long paragraphs describing the phone dragnet problems (making no mention even of the related Internet dragnet ones), Alexander promised to work with the FISC on the phone dragnet “and other compliance issues,” he likely invoked an earlier reference to the far more egregious Internet dragnet ones.
NSA is committed to working with the FISC on this and other compliance issues to ensure that this vital intelligence tool works appropriately and effectively. For purposes of this litigation, and the privilege assertions now made by the DNI and by the NSA, the intelligence sources and methods described herein remain highly classified and the disclosure that [redacted] would compromise vital NSA sources and methods and result in exceptionally grave harm to national security.
I find it tremendously telling how closely Alexander ties the violations themselves to the state secrets invocation.
The thing is, at this point in the litigation, the only honest thing to submit would have been a declaration stating, “Judge Walker? It turns out we’ve just alerted the FISC that we’ve been doing precisely what the plaintiffs in this case have accused of us — we’ve been doing it, in fact, for 5 years.” An honest declaration would have amounted to concession of the suit.
But it didn’t.
And that state secrets declaration, like the one the government submitted at the end of September, was accompanied by a secret statement of authorities, a document that (unless I’m mistaken) is among the very few that the government hasn’t released to EFF.
Which is why I find it so interesting that the government is now, specifically with reference to upstream collection, following the same approach.
Do these secret statements of authority basically say, “We admit it, judge, we’ve been violating the law in precisely the way the plaintiffs claim we have. But you have to bury that fact behind state secrets privilege, because our dragnets are more important than the Fourth Amendment”? Or do they claim they’re doing this illegal dragnettery under EO 12333 so the court can’t stop them?
If so, I can see why the government would want to keep them secret.
Update: I originally got the name of Shubert wrong. Virginia Shubert is the plaintiff.
If the documents relating to Yahoo’s challenge of Protect America Act released last month are accurate reflections of the documents actually submitted to the FISC and FISCR, then the government submitted a misleading document on June 5, 2008 that was central to FISCR’s ultimate ruling.
As I laid out here in 2009, FISCR relied on the the requirement in EO 12333 that the Attorney General determine there is probable cause a wiretapping technique used in the US is directed against a foreign power to judge the Protect America Act met probable cause requirements.
The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern.
The Attorney General hereby is delegated the power 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, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.
44 Fed. Reg. at 59,951 (emphasis supplied). Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power. Moreover, this determination was not made in a vacuum. The AG’s decision was informed by the contents of an application made pursuant to Department of Defense (DOD) regulations. See DOD, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons, DOD 5240.1-R, Proc. 5, Pt. 2.C. (Dec. 1982).
Yahoo didn’t buy this argument. It had a number of problems with it, notably that nothing prevented the government from changing Executive Orders.
While Executive Order 12333 (if not repealed), provides some additional protections, it is still not enough.
Thus, to the extent that it is even appropriate to examine the protections in the Executive Order that are not statutorily required, the scales of the reasonableness determination sway but do not tip towards reasonableness.
Yahoo made that argument on May 29, 2008.
Sadly, Yahoo appears not to have noticed the best argument that Courts shouldn’t rely on EO 12333 because the President could always change it: Sheldon Whitehouse’s revelation on December 7, 2007 (right in the middle of this litigation) that OLC had ruled the President could change it in secret and not note the change publicly. Whitehouse strongly suggested that the Executive in fact had changed EO 12333 without notice to accommodate its illegal wiretap program.
But the government appears to have intentionally withheld further evidence about how easily it could change EO 12333 — and in fact had, right in the middle of the litigation.
This is the copy of the Classified Annex to EO 12333 that (at least according to the ODNI release) the government submitted to FISCR in a classified appendix on June 5, 2008 (that is, after Yahoo had already argued that an EO, and the protections it affords, might change). It is a copy of the original Classified Appendix signed by Ed Meese in 1988.
As I have shown, Michael Hayden modified NSA/CSS Policy 1-23 on March 11, 2004, which includes and incorporates EO 12333, the day after the hospital confrontation. The content of the Classified Annex released in 2013 appears to be identical, in its unredacted bits, to the original as released in 1988 (see below for a list of the different things redacted in each version). So the actual content of what the government presented may (or may not be) a faithful representation of the Classified Appendix as it currently existed.
But the version of NSA/CSS Policy 1-23 released last year (starting at page 110) provides this modification history:
This Policy 1-23 supersedes Directive 10-30, dated 20 September 1990, and Change One thereto, dated June 1998. The Associate Director for Policy endorsed an administrative update, effective 27 December 2007 to make minor adjustments to this policy. This 29 May 2009 administrative update includes changes due to the FISA Amendments Act of 2008 and in core training requirements.
That is, Michael Hayden’s March 11, 2004 modification of the Policy changed to the Directive as existed before 2 changes made under Clinton.
Just as importantly, the modification history reflects “an administrative update” making “minor adjustments to this policy” effective December 27, 2007 — a month and a half after this challenge started.
By presenting the original Classified Appendix — to which Hayden had apparently reverted in 2004 — rather than the up-to-date Policy, the government was presenting what they were currently using. But they hid the fact that they had made changes to it right in the middle of this litigation. A fact that would have made it clear that Courts can’t rely on Executive Orders to protect the rights of Americans, especially when they include Classified Annexes hidden within Procedures.
In its language relying on EO 12333, FISCR specifically pointed to DOD 5240.1-R. The Classified Annex to EO 12333 is required under compliance with part of that that complies with the August 27, 2007 PAA compliance.
That is, this Classified Annex is a part of the Russian dolls of interlocking directives and orders that implement EO 12333.
And they were changing, even as this litigation was moving forward.
Only, the government appears to have hidden that information from the FISCR.
Update: Clarified that NSA/CSS Policy 1-23 is what got changed.
Update: Hahaha. The copy of DOD 5240.1 R which the government submitted on December 11, 2007, still bears the cover sheet labeling it as an Annex to NSA/CSS Directive 10-30. Which of course had been superseded in 2004.
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.
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.
Some weeks ago, I noted the language in James Clapper’s letter purportedly “supporting” Patrick Leahy’s USA Freedom Act making it clear he intended to retain the information asymmetry that currently exists in the FISA Court — specifically, ex parte communication with the court.
We note that, consistent with the President’s request, the bill estsablishes a process for the appointment of an amicus curiae to assist the FISA Court and FISA Court of Review in matters that present a novel or significant interpretation of the law. We believe that the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government. We are also aware of the concerns that the Administrative Offices of the U.S. Courts expressed in a recent letter, and we look forward to working with you and your colleagues to address these concerns.
The Yahoo documents released a few weeks back illustrate how this might work in practice.
We’ve known since January 2009 that Yahoo (which we then only knew was an Internet company) didn’t receive the materials — perhaps most importantly, the minimization procedures — it needed to adequately challenge the program.
The cover sheet to the ex parte appendix provided to the FISCR illustrates the range of things withheld from Yahoo’s attorney, Marc Zwillinger, who apparently had a Top Secret clearance. In addition to the minimization procedures for NSA and FBI, the government withheld the “linking” procedures used to identify targets (the titles of these documents are redacted in the released version, but this post explains why at least some must pertain to these procedures; note, I think the government also withheld these from Judge Reggie Walton at the FISC level!), and a January 15, 2008 Colleen Kollar-Kotelly FISC opinion assessing the adequacy of the original certifications.
Comparing two versions of Walton’s April 25, 2008 opinions — a version redacted for Yahoo’s use in 2008, and the version redacted for public release now — provides context on the key issues obscured or suppressed entirely from Yahoo’s view. (Note two things about these redactions: first, with the exception of language on the information the government demanded from Yahoo, we’re receiving more information than Yahoo’s cleared attorney received when he was fighting this case. And the older document actually includes two sets of redactions: the more faded redactions used for Yahoo, and a more opaque set done for this release, the latter of which hide details about the Directives given to Yahoo.)
Effectively, the government hid what they changed when they rewrote Certifications underlying their demands to Yahoo just 2 weeks before the law expired. A significant part of those changes involves getting FBI involved in the process (I increasingly suspect those January 29, 2008 Certifications are when the government first obtained official permission for FBI back door searches).
Notice of the new Certificates was given to Yahoo on February 16, 2008, the day PAA expired, and signed by then Solicitor General Paul Clement, though signed as Acting Attorney General (see page 81). One day earlier, Judge Walton had given the government an ex parte order requiring them to address whether the ex parte materials they had submitted to him in December “constitutes the complete and up-to-date set of certifications … applicable to the directives that are at issue in this proceeding.” Walton also required the government to provide notice to Yahoo they were going to submit a new classified appendix.
Apparently, Walton had gotten wind of the fact — but had not been told formally — that the government had submitted entirely new Certifications affecting their treatment of the data they would obtain from Yahoo. So he ordered them to update the record so his review actually considered the surveillance as it would be implemented.
I’ve listed most of the differences between the two memoranda below. While much of it pertains to prior classified decisions and the operation of FISC generally, the biggest sections redacted from Yahoo but released in part to us now describe the new certifications, including FBI’s new role in the process. Of particular concern, the government withheld Walton’s comment admonishing the government for changing the certifications, “without appropriately informing the Court or supplementing the record in this matter until ordered to do so” (page 4), though footnote 4 and page 35 make it clear that Walton revealed some details of the government’s belated disclosures in a February 29 order for more briefing.
More troubling still, they hid Walton’s still significantly-redacted assessment that the changes in the Certifications would not change the nature of the government’s demand from Yahoo (page 38).
Neither type of amendment altered the nature of the assistance to be rendered by Yahoo,40
40 Yahoo has submitted a sworn statement that, prior to serving the directives on Yahoo, representatives of the government “indicated that, at the outset, it only would expect…
I wrote about these changing requests here. And while on paper the changing requests couldn’t have been a result of the changed Certification — Yahoo’s Manager of Legal Compliance described them in a January 23 submission, and the new Certifications were issued the following week — I find the timing, and the government’s failure to notice Walton on them, suspect enough that it’s the kind of thing that should have been briefed. Plus, as I’ll show in a follow-up post, I’m fairly certain the government hid from both FISC and FISCR the degree to which this was about targeting Americans.
Once Walton learned that the government’s requests to Yahoo had changed between the date of Kollar-Kotelly’s initial approval and the expiration of the law, it seems it should have merited more direct briefing, but that would have required admitting that the changes put domestic law enforcement in the center of the program, which presents (or should present) significantly different Fourth Amendment concerns, notably increasing the importance of prior interpretations of the “significant purpose” language instituted under the PATRIOT Act.
In other words, not only did the ex parte nature of this proceeding hide the details Yahoo would have needed to make a robust Fourth Amendment argument, as well as evidence that the government was not being entirely forthcoming to FISC (which would have bolstered Yahoo’s separation of powers claim), it also hid what may be specifically pertinent details behind the government’s last minute changed certifications.
In theory, this shouldn’t happen with the USA Freedom Advocate, because the bill specifically requires the Advocate have access to certifications necessary for her to complete her duties.
(A) IN GENERAL.—If a court established under subsection (a) or (b) designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate—
(ii) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate;
By comparison, the government was challenging Yahoo’s legal standing to take this challenge in the first place.
But I find the apparent basis for withholding information from Yahoo to be relevant. This memorandum, at least, was originally classified Top Secret/ORCON (Originator Controlled); the redacted memorandum given to Yahoo was classified Secret. That means that the changes arose, at least in part, from the ability of the originator (which may be DOJ’s National Security Division, given that Mark Bradley conducted the declassification review) to determine who gets the document. As I noted, there are two bases in USAF that would permit the government to withhold information, classification and privilege. Withholding information under an ORCON claim likely stems from both (though I am checking this).
So while the government should not be able to treat the advocate the same way they treated Yahoo (which, after all, FISC treated as a Congressionally sanctioned challenger to the orders, just as it would the advocate), they seem to have the prerogative to. (Update: I should add that Walton permitted the government to do all the ex parte briefing here under FISA’s ex parte briefing language; given that USAF doesn’t change that for any of the authorities in question, we should assume this precedent will apply to the advocate.)
To be clear, the USAF advocate is not one of the things that I believe sets back a slow reform process (as, for example, I believe the “transparency” provisions and some weakened minimization procedures do). I think it most likely that the advocate will evolve the way PCLOB has, which was first authorized in 2004, thwarted by Executive obstruction (on precisely these kinds of issues), reauthorized as a more effective body in 2007, then slow-walked again — partly by President Obama, though partly by Congress — for another 6 years. That is, if the advocate is at least as self-respecting as Lanny Davis (!), she will quit if the Executive ignores the intent of Congress that she have access to the materials she needs to do her job, exposing the inefficacy of the existing system. All that, of course, assumes she will cop onto what has been withheld. Clearly, Yahoo got a sense of it during this process, though FISC and FISCR seem to have realized only some of the other stuff withheld from them.
That is, judging by the PCLOB example, if all goes well and if USAF were to pass this year, we might have a fully functional advocate by 2023!
The Yahoo materials released show that the government withheld pertinent information from Yahoo, FISC, and FISCR until forced to provide it, and they never provided any of them with all the information they should have.
That it retains the ability to do so under USAF doesn’t bode well for the advocate. But that’s really just a subset to a larger issue that, even when authorized by Congress to provide oversight of this executive spying, the government has consistently, for years, been less than fully cooperative with FISC’s authority to do so.
As I’ve said, the surest way to reform surveillance is to eliminate the FISA Court.