Robert Mueller

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The Section 215 Rap Sheet

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.

Statutory abuses

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.

Minimization procedure abuses

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.

Overall sloppiness

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.

  • An application made using expedited approval that made a material misstatement about where FBI obtained a tip about the content of a phone call. The FBI agent involved “is no longer with the FBI.” The target was prosecuted for unlawful disclosure of nuke information, but the Section 215 evidence was not introduced into trial and therefore he did not have an opportunity to challenge any illegal investigative methods.
  • A 2009 application involving significant minimization concerns and for which FBI rolled out a “investigative value” exception for access limits on Section 215 databases. This also may involve FBI’s secret definition of US person, which I suspect pertains to treating IP addresses as non-US persons until they know it is a US person (this is akin to what they do under 702 MPs). DOJ’s minimization report to FISC included inaccuracies not fixed until June 13, 2013.
  • A 2009 application for a preliminary investigation that obtained medical and education records from the target’s employer. FBI ultimately determined the target “had no nexus to terrorism,” though it appears FBI kept all information on the target (meaning he will have records at FBI for 30 years). The FBI’s minimization report included an error not fixed until June 13, 2013, after the IG pointed it out.
  • A cyber-investigation for which the case agent could not locate the original production, which he claims was never placed in the case file.

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 2003, OLC Doubled Down on Unlimited (de)Classification Authority for the President

One of the tactics those in DOJ attempted to use in 2004 to put some controls on Stellar Wind, it appears from the DOJ IG Report, was to point to legal requirements to inform Congress (for example, to inform Congress that the Attorney General had decided not to enforce particular laws), which might have led to enough people in Congress learning of the program to impose some limits on it. For example, Robert Mueller apparently tried to get the Executive to brief the Judiciary Committees, in addition to the Gang of Four, about the program.

On March 16, 2004 Gonzales wrote a letter to Jim Comey in response to DOJ’s efforts to force the Administration to follow the law. Previous reporting revealed that Gonzales told Comey he misunderstood the White House’s interest in DOJ’s opinion.

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

This appears to have led directly to Comey drafting his resignation letter.

But what previous reporting didn’t make clear was that Gonzales also claimed the Administration had unfettered authority to decide whether or not to share classified information (and that, implicitly, it could blow off statutory Congressional reporting requirements).

Gonzales letter also addressed Comey’s comments about congressional notification. Citing Department of the Navy v. Egan, 484 U.S. 518 (1988) and a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, “including authority to determine the extent to which disclosure may be made outside the Executive Branch.” (TS//STLW//SI/OC/NF) [PDF 504]

I’m as interested in this as much for the timing of the memo — 2003 — as the indication that the Executive asserted the authority to invoke unlimited authority over classification as a way to flout reporting mandates (both with regards to Stellar Wind, but the implication is, generally as well).

The most likely time frame for this decision would be around March 25, 2003, when President Bush was also rewriting the Executive Order on classification (this EO is most famous because it gave the Vice President new authorities over classifying information). If that’s right, it would confirm that Bush’s intent with the EO (and the underlying OLC memo) was to expand the ability to invoke classification for whatever reasons.

And if that OLC opinion was written around the time of the March 2003 EO, it would mean it was on the books (and, surely, known by David Addington) when he counseled Scooter Libby in July 2003 he could leak whatever it was Dick Cheney told him to leak to Judy Miller, up to and including Valerie Plame’s identity.

But I’m also interested that this footnote was classified under STLW, the Stellar Wind marking. That may not be definitive, especially given the innocuous reference to the OLC memo. But it’s possible that means the 2003 opinion — the decision to share or not share classified information according to the whim of the President — was tied to Stellar Wind. That would be interesting given that George Tenet and John Yoo were declaring Iraq and their claimed conspirators in the US were terrorists permissible for surveillance around the same time.

Finally, I assume this OLC memo, whatever it says, is still on the books. And given how it was interpreted in the past — that OLC could simply ignore reporting mandates — and that the government continued to flout reporting mandates until at least 2010, even those tied specifically to surveillance, I assume that the Executive still believes it can use a claimed unlimited authority over classification to trump legally mandated reporting requirements.

That’s worth keeping in mind as we debate a bill, USA F-ReDux, celebrated, in part, for its reporting requirements.

Alberto Gonzales: The Counsel Represented by Counsel and Babysat by Cheney’s Counsel

Footnote 147 of the DOJ IG Report on Stellar Wind (PDF 462-3) modifies a discussion of the discussions on March 6 and 7, 2004 in which Jack Goldsmith and Patrick Philbin informed David Addington and Alberto Gonzales that they could not reauthorize Stellar Wind — in spite of applying a relaxed standard of review — because the White House wanted them to affirm that John Yoo’s November 2, 2001 memo had covered the program, yet Yoo’s memo had not included all aspects of it (this likely pertains to the collection of Internet metadata from telecom switches, though it may also pertain to the collection on Iraqi targets).

After reporting Gonzales’ claimed reaction to the meetings at which DOJ’s lawyers told the White House the program was illegal, the report notes that Gonzales was lawyered up at his IG interview, but later provided further elaboration in writing.

Later on March 6, Goldsmith and Philbin went to the White House to meet with Addington and Gonzales to convey their conclusions that the [2 lines redacted] According to Goldsmith’s chronology of these events, Addington and Gonzales “reacted calmly and said they would get back with us.” Goldsmith told us that the White House was not worried that it was “out there,” meaning that it was implementing a program without legal support.

On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin’s interpretation of Yoo’s memoranda and on the need to change the scope of the NSA’s collection. Gonzales told us that he recalled the meetings of March 6 and March 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to “find a way forward.”147

147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal support for the program and [redacted]. Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of the report, he stated that he would not have brought Goldsmith and Philbin’s “concerns” to the attention of the President because there would have been nothing for the President to act upon at this point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President’s attention if the President could make a decision about them.

Remember the situation Gonzales would have been in. The interview (and probably, though not certainly, the review of the draft) would have taken place in fall to winter 2008, when Bush was still in office.

Thus, the interview would have happened during the period or just after DOJ IG conducted an investigation into what amounted to a CYA file Gonzales had carried around in his briefcase — documents and draft documents relating to all the illegal programs in which he had been involved, including his notes pertaining to the hospital confrontation over Stellar Wind. There’s reason to believe he was referred for that investigation precisely because it was recognized as a CYA file and he was no longer regarded as loyal on surveillance issues.

In addition, at the time, too, DOJ was still considering whether to file charges against Gonzales for the US Attorney scandal. So it makes sense that Gonzales’ retained lawyer, George Terwilliger, was there (and it is somewhat surprising that, given that John Ashcroft got away without cooperating, Terwilliger let him cooperate).

But then there is Emmet Flood.

Both before and after his tenure in the White House Counsel’s office — where he was brought in to deal with the scandals of the late Bush Administration — Flood was (and remains) a partner at Williams & Connolly. And not just a partner. He was formally part of Dick Cheney’s defense team when Patrick Fitzgerald was honing in on the Vice President for leaking Valerie Plame’s identity, and Flood would remain involved in protecting Cheney even after moved onto the taxpayer dime.

Emmet Flood may have been there in the name of protecting Executive Privilege, but it was not Bush’s privilege Flood was protecting.

So we learn that on March 6, 2004, Goldsmith and Philbin tell Gonzales and Addington that parts of Stellar Wind have never been legal. On March 7, 2004, Gonzales and Addington come back and tell OLC’s lawyers they’re wrong.

And when DOJ’s IG asked Gonzales whether — in the interim day — he had informed the President about this, Cheney’s defense lawyer pipes up and tells him not to answer. Given that Bush apparently learned new details of all this 4 days later when Comey and Robert Mueller would tell him directly, the answer is no (which is consistent with what Gonzales said when Cheney’s lawyer wasn’t present).

Which leaves the logical and thoroughly unsurprising conclusion — but one Cheney’s taxpayer funded lawyer didn’t want included in a legal document — Cheney (who is not a lawyer, nor does he have Article II authority directly) is the one who told Gonzales and Addington to dig in.

Update: Flood also had Gonzales refuse to answer a question about whether anyone had thought to include DOJ in the meeting with Congress.

In Response to NYT Lawsuit, FBI Reclassifies 26 Words

Last week, a number of people hailed the further declassification of DOJ Inspector General’s Report on FBI’s use of Exigent Letters.

That enthusiasm is misplaced, however. What too few people noticed is the thankless work Charlie Savage did to identify what was newly declassified. He had FOIAed the IG Report, which is what set off the declassification review.

In fact, FBI redacted three things that had previously been visible. On page 55/PDF 68, it redacted the title, “Diagram 2.1: Calling Circle or “Community of Interest.” On page 105/PDF 118 they redacted language indicating they use a certain kind of “language” to order what are probably also communities of interest. Finally, on page 207/PDF 220, FBI newly redacted the title, “Chart 4.3 Records for 10 Telephone Numbers Uploaded to FBI Databases With the Longest Periods of Overcollection.”

So the NYT sued the FBI to declassify language that should be declassified, given everything we’ve learned about related programs subsequent to the Snowden leaks, and FBI responded by trying to pretend we don’t know they were getting (and still get, per DOJ IG’s most recently report) call chains from telecoms.

To be fair, FBI did declassify some new stuff. That includes:

  • Roughly 44 uses of some form of the word “search”
  • Roughly 33 uses of some form of “target”
  • Roughly 24 references to years, either 2004 or 2005
  • The names of 3 of a number of journalists whose records had been improperly collected and details of the collection

About the  most interesting declassification was a citation to a Carrie Johnson story, published well over a year before the IG Report came out, describing the collection on those 3 journalists. The IG Report invoked this language in the story…

Mueller called the top editors at The Washington Post and the New York Times to express regret that agents had not followed proper procedures when they sought telephone records under a process that allowed them to bypass grand jury review in emergency cases.

… as evidence to support a footnote, which (except for the reference to Johnson’s article) had been unclassified, explaining,

In addition to the letter, Director Mueller called the editors of the two newspapers to express regret that the FBI agents had not followed proper procedures when they sought the reporters’ telephone records.

That is, they had classified reference to a published news article as S/NF! (Though I suppose it is possible that the fact they were hiding is that Glenn Fine had to read the WaPo to figure out what happened here, because Mueller wasn’t speaking directly to him.)

Congratulations to Carrie Johnson who I guess now classifies as a state secret!

I asked the Savage (and through him, NYT’s lawyer, David McCraw) how the NYT felt about FBI classifying, rather than declassifying language in response to his suit, and he suggested NYT expects DOJ to pay them for their time. “We have incurred no outside counsel fees and anticipate that the government will be required to pay us for the time spent by in-house counsel.”

Still, I think Savage (and FOIA requesters generally) should get finder’s fees every time the government newly classifies stuff years later … impose some kind of fine for stupid overclassification.

Update: Corrected timing on Johnson story which came out in August 2008, so 17 months before the IG Report.

Keith Alexander’s Cyber Circle Jerk Gets Worse

As I noted earlier today, last year Keith Alexander’s CyberCommand forces got their asses handed to them by civilians in a cyber war game.

“They were pretty much obliterated,” said one Capitol Hill staffer who attended the exercise. “The active-duty team didn’t even know how they’d been attacked.”

Nevertheless, here is one of the things he told Ken Dilanian in his second “exclusive” interview attempting to explain why he should get rich in the private sector capitalizing on 9 years of fear-mongering about cyber.

“If I retired from the Army as a brain surgeon, wouldn’t it be OK for me to go into private practice and make money doing brain surgery?” he asked. “I’m a cyber guy. Can’t I go to work and do cyber stuff?”

Alexander’s story has changed a bit since his last attempt  to explain himself, to Shane Harris. The number of patents he’ll get expanded from 9 to 10.

His firm is developing as many as 10 patents, he said, and has secured contracts with three clients he declines to name.

And he claims — after apparently not challenging the underlying $1 million a month claim to Harris — that his rates were always overblown.

Reports of his firm charging $1 million a month for consulting services are not accurate, he said, though he declined to disclose his firm’s fees.

“That number was inflated from the beginning,” he said.

But that’s not the best bit. In addition to revolving door shadow regulator Promontory Financial Group (which goes unmentioned in both stories) and the Chertoff Group, Dilanian reveals who gave Alexander the advise he could get rich off serving the last 9 years in a top national security position: Someone who spent those same years in a top national security position.

Lawyers at NSA and his private lawyers— including former FBI Director Robert Mueller, now with the Wilmer Hale law firm in Washington — have told him he is on firm legal footing, Alexander said.

These exclusives are all well and nice, but both of them ignore the reports about Alexander serving as the lead to set up a public-private partnership between the banksters and the national security state to infringe our privacy in order to keep the banks safe (heck neither mentions his known contract with SIFMA).

Until exclusives actually ask Alexander about the known thrust of this program, they’re going to help his credibility no more than the exclusives with the same journalists explaining NSA spying did.

Yet More Cell Phones IDed in Program that Purportedly Doesn’t Get Cell Phones

For another purpose, I’m reviewing Robert Mueller’s declaration in support of the government’s report to the FISA Court in 2009, attempting to get full phone dragnet privileges turned back on. (starting on PDF 91)

As part of it, Mueller provides narratives about 4 FBI investigations that became full investigations as a result of phone dragnet data.

One of those (the first, starting on PDF 102) is Basaaly Moalin. As I’ve already noted, that involved the connection of at least one and almost certainly two T-Mobile cell phone users to a phone used by Somali warlord Aden Ayro.

While the declaration’s redaction on this point is inconsistent, it does confirm cell phones were involved in the chain between Ayro and Moalin (and may suggest Moalin was identified on a 3rd degree connection, not 2nd as court documents had seemed to imply).

Screen shot 2014-04-20 at 10.13.08 AM


But the description of another case, ultimately involving a selector who got killed off, involved another cell phone.


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Of course, in this case, the newly identified cell phone could be an AT&T cell, and there seems to be no claim that those aren’t collected under the phone dragnet.

Altogether, unredacted sections of Mueller’s narrative mention cell phones 6 times, and a number of the redactions appear likely to hide others. A number of those, mind you, are probably foreign cells, which were likely collected under EO 12333. But given that 12333 data was mixed with (and, indeed, indistinguishable from to the NSA at that point) Section 215 data, claims the database couldn’t accept cell data seem clearly wrong.

Still, given all the credulous claims that the phone dragnet has not been collecting cell data, it seems rather relevant that FBI’s own discussions of the phone dragnet successes involve so many cell phones.

The Lapses in Dragnet Notice to Congress

I’m at a great conference on national security and civil liberties. Unfortunately, speakers have repeatedly claimed that NSA fully informs Congress on its programs.

Even setting aside Dianne Feinstein’s admission that the intelligence committees exercise less oversight over programs conducted under EO 12333, there are a number of public documents that show the Executive failing to fully inform Congress:

April 27, 2005: Alberto Gonzales and Robert Mueller brief SSCI on PATRIOT Authorities in advance of reauthorization. They make no mention of the use of PR/TT to gather Internet metadata, much less the violations of Colleen Kollar-Kotelly limits on the kind of data collected during the first period of its use.

October 21, 2009: A Michael Leiter and NSA Associate Deputy Director briefing to the House Intelligence Committee pointed to the September 3, 2009 phone dragnet reauthorization as proof that NSA had regained FISC’s confidence, without mentioning further violations on September 21 and 23 — violations that NSA did not inform FISC about.

August 16, 2010: DOJ did not provide the Intelligence and Judiciary Committees with some of the pre-July 10, 2008 FISC rulings providing significant constructions of FISA pertaining to — at a minimum — Section 215 until after the first PATRIOT Reauthorization.

February 2, 2011: House Intelligence Chair Mike Rogers did not invite members of Congress to read the 2011 notice about the phone and Internet dragnets. Approximately 86 freshmen members — 65 of whom voted to reauthorize the PATRIOT Act, a sufficient number to tip the vote — had no opportunity to read that notice.

May 13, 2011: In a briefing by Robert Mueller and Valerie Caproni designed to substitute for the Executive’s notice to Congressmen about the phone and Internet dragnets, the following exchange took place.

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.

While the balance of the briefing remains redacted, this seems to suggest the FBI did not brief House Republicans about the dragnet violations.

September 1, 2011: NSA did not provide notice to the House Judiciary Committee about its testing of geolocation data under Section 215 until after the reauthorization of PATRIOT Act, in spite of the fact that it had been conducting such tests throughout the 2010 and 2011 debates on the PATRIOT Act.

Maybe Jim Comey Killed Off the Nation’s Premier Law Enforcement Agency?

Update: The change went into effect on July 1, 2013, so before Comey’s coronation.

I’ve been tracking the FBI’s embrace of its national security/intelligence role (with a consequent inattention to bank crimes, in particular) for years — notably with this post on its self-congratulation a decade after 9/11. (See also this post, this post, and this one.)

So regular readers will be unsurprised by Foreign Policy’s report that the FBI’s boilerplate fact sheet now hails its primary function to be national security.

But quietly and without notice, the agency has finally decided to make it official in one of its organizational fact sheets. Instead of declaring “law enforcement” as its “primary function,” as it has for years, the FBI fact sheet now lists “national security” as its chief mission. The changes largely reflect the FBI reforms put in place after September 11, 2001, which some have criticized for de-prioritizing law enforcement activities. Regardless, with the 9/11 attacks more than a decade in the past, the timing of the edits is baffling some FBI-watchers.

But I am a bit interested in the question FP goes onto ask: when did this happen. It appears to have happened during the summer.

“What happened in the last year that changed?” asked Kel McClanahan, a Washington-based national security lawyer.

McClanahan noticed the change last month while reviewing a Freedom of Information Act (FOIA) request from the agency. The FBI fact sheet accompanies every FOIA response and highlights a variety of facts about the agency. After noticing the change, McClanahan reviewed his records and saw that the revised fact sheets began going out this summer. “I think they’re trying to rebrand,” he said. “So many good things happen to your agency when you tie it to national security.”

What FP doesn’t answer is why this happened.

But one possibility is the arrival of Jim Comey.

Comey didn’t take over as FBI DIrector until September 4, 2013. But his confirmation hearing (more of a coronation, really) was on July 9; his confirmation vote was on July 29. So he had plenty of time to complete the FBI’s rebranding as a domestic spy agency rather than its premier domestic law enforcement agency before he officially took over.

I checked his confirmation hearing coronation, to see if he announced this rebranding. I’ve been unable to find a formal statement (!!). And while later in the hearing he talked about balancing the intelligence side with the law enforcement side (the FBI itself emphasized this part of the hearing), what apparently extemporaneous statement he did give focused on the FBI’s transition under Robert Mueller to an intelligence agency. (This is my transcription of the non-family part, which took up half of the statement; it starts around 42:30.)

If I’m confirmed for this position I will follow a great American, one who has been clear-eyed about the threat facing our country, especially the metastasizing terrorist threat, the cyber-threat, that poses a risk to our secrets, to our commerce, to our people, and most ominously, to the networks we depend upon as our lifeblood. I know he has changed the FBI, as the Chairman and the Ranking Member described, in fundamental and crucial ways. I know that this will be a hard job. I’m sure that things will go wrong and I will make mistakes. What I pledge to you though is to follow Bob Mueller’s example of staring hard at those mistakes, learning from those mistakes, and getting better as a result of those mistakes. His legacy of candor and straight-forwardness and integrity is one that I pledge to continue. I also know that the FBI is and must be an independent entity in the life of America. It cannot be associated with any party or any interest or any group. It has to be seen as the good guys and good gals in this country. The FBI is and must be about finding the facts and only the facts in a fair, thorough, and objective way, and to do that with a rock-solid commitment to our Constitution and to our laws. That culture of commitment to law and resistance to any jeopardy of independence is at the core of the FBI. I know it is deep inside FBI Agents. Those values are the things that I love about the FBI.

It wouldn’t be surprising that a guy with roots in NY who was prosecuting terrorism even before 9/11 would adopt this focus. Nor do I, thus far, have reason to believe he won’t be better at going after banksters than Mueller was (and Obama has finally shifted some focus to it).

But I do hope — given his appeal to independence — he realizes that making the FBI a domestic intelligence agency does make the FBI a partisan institution, because it de-emphasizes a threat every bit as serious as terrorists and cybercriminals: the banksters.

Did DOJ Prosecute Basaaly Moalin Just to Have a Section 215 “Success”?

At yesterday’s Senate Judiciary Committee hearing on the dragnet, the government’s numbers supporting the value of the dragnet got even worse. At one point, Pat Leahy asserted that the phone dragnet had only been useful in one case (in the last hearing, there had been a debate over whether it had been critical in one or two cases).

Leahy (after 1:09:40): We’ve already established that Section 215 was uniquely valuable in just one terrorism case, not the 54 that have been talked about before.

In a follow up some minutes later, Keith Alexander laid out numbers that explain how the Administration had presented that 1 case as 12 in previous claims.

Alexander (at 1:21:30): As you correctly stated, there was one unique case under 215 where the metadata helped. There were 7 others where it contributed. And 4 where it didn’t find anything of value, and we were able to tell the FBI that.

That is, to publicly claim that the phone dragnet has been useful in 12 cases, the Administration included 7 cases where — as with the Najibullah Zazi case — it proved to be a tool that provided non-critical information available by other means, and 4 cases where it was useful only because it didn’t show any results.

To fluff their numbers, the Administration has been counting cases where the phone dragnet didn’t show results as showing results of no results.

With sketchy numbers like that, it’s high time for a closer examination of the details — and the timing — of the Basaaly Moalin prosecution, the only case (Alexander now agrees) where the phone dragnet has been critical.

As a reminder, Moalin was first identified via the dragnet — probably on a second hop away from Somali warlord Aden Ayro — in October 2007.  They used that and probably whatever tip they used to investigate him in 2003 to get a FISA warrant by December 20, 2007. Only 2 months later, February 26, 2008, was al-Shabaab listed as a foreign terrorist organization. Ayro was killed on May 1, 2008, though the government kept the tap on Moalin through December 2008, during which period they collected evidence of Moalin donating money (maybe 3 times as much as he gave to al-Shabaab-related people) to a range of people who had nothing to do with al-Shabaab. A CIPA stipulation presented at the trial revealed that during this period after the inculpatory conversations, Moalin’s tribe and Shabaab split and Moalin’s collections supported other entities in Somalia.

1. Money collected for the Ayr sub-clan was given to individuals including Abukar Suyare (Abukar Mohamed) and Fare Yare, who were associated with the Ilays charity.

2. Money collected by the men in Guracewl on behalf of the Ayr sub-clan was given to a group that was not as-Shabaab. [sic]

3. There was a dispute between al-Shabaab, the Ayr clan and Ilays over the administration pf [sic] of Galgaduud regions.

4. Members of the Ilays charity and the Ayr sub-clan, including Abukar Suryare, were opposed to the al-Shabaab and were Ayrow’s enemies.

On April 8, 2009, FBI would search the hawala used to send money based entirely on Moalin’s case. Yet on April 23, 2009, according to a document referenced but not provided to Moalin’s defense, the FBI concluded that Moalin not only no longer expressed support for al-Shabaab, but that he had only ever supported it because of tribal loyalties, not support for terrorism.

The San Diego FIG assesses that Moalin, who belongs to the Hawiye tribe/Habr Gedir clan/Ayr subclan, is the most significant al-Shabaab fundraiser in the San Diego Area of Operations (AOR). Although Moalin has previously expressed support for al-Shabaab, he is likely more attentive to Ayr subclan issues and is not ideologically driven to support al-Shabaab. The San Deigo FIG assesses that Moalin likely supported now deceased senior al-Shabaab leader Aden Hashi Ayrow due to Ayrow’s tribal affiliation with the Hawiye tribe/Habr Gedir clan/Ayr subclan rather than his position in al-Shabaab. Moalin has also worked diligently to support Ayr issues to promote his own status with Habr Gedir elders. The San Diego FIG assesses, based on reporting that Moalin has provided direction regarding financial accounts to be used when transferring funds overseas that he also serves as a controller for the US-based al-Shabaab fundraising network.

The intercepts on which the prosecution was based support this. They show that Moalin’s conversations with Ayro and others focused on fighting the (American-backed) Ethiopian invaders of his region, not anything outside of Somalia.

Continue reading

The NSA versus “Issue-Based Extremists”

The CBC has a Snowden-based story about how the NSA helped Canada’s Communications Security Establishment Canada in advance of and during the G20 held in Toronto in 2010. That isn’t all that surprising. As the story notes, it’s consistent with other stories of NSA spying surrounding international diplomatic meetings.

But the story does note that the Snowden documents make it clear there was no specific al Qaeda threat. Instead, the “threat” to the meeting came from “issue-based extremists.”

Much of the secret G20 document is devoted to security details at the summit, although it notes: “The intelligence community assesses there is no specific, credible information that al-Qa’ida or other Islamic extremists are targeting” the event.

No matter. The NSA warns the more likely security threat would come from “issue-based extremists” conducting acts of vandalism.

The comment reminds me of a paragraph in testimony Alberto Gonzales and Robert Mueller gave to the Senate Intelligence Committee in 2005, in advance of the first PATRIOT Act reauthorization. The testimony is notable for Gonzales and Mueller’s silence about the use of Pen Registers to collect a significant chunk of all the Internet-based metadata in the US (NSA had already been caught collecting “metadata” that was really “content” by then), even while he emphasized the “relevant to” language that had been added to Pen Registers in 2001.

Sensibly, Section 214 of the USA PATRIOT Act simplified the standard that the government must meet in order to obtain pen/trap data in national security cases. Now, in order to obtain a national security pen/trap order, the applicant must certify “that the information likely to be obtained is foreign intelligence information not concerning a United States person, or is relevant to an investigation to protect against international terrorism or clandestine intelligence activities.” Importantly, the law requires that such an investigation of a United States person may not be conducted solely upon the basis of activities protected by the First Amendment to the Constitution.

Section 214 should not be permitted to expire and return us to the days when it was more difficult to obtain pen/trap authority in important national security cases than in normal criminal cases. This is especially true when the law already includes provisions that adequately protect the civil liberties of Americans. I urge you to reauthorize section 214.

Over the course of the reauthorization process, of course, Congress added that “relevance” language to Section 215, which served as the basis for the phone dragnet of all American’s phone calls.

But the paragraph of the Gonzales/Mueller testimony that stuck out at me described how PATRIOT Section 203 — which permitted the sharing of Grand Jury, wiretap, and other criminal investigation information with intelligence professionals — had authorized information sharing at similar high profile meetings. After 8 bullet point examples showing how this information sharing had supported terrorism (or Iraqi) investigations, the testimony then revealed it had been used to authorize information sharing during 2004’s G-8 and Presidential Conventions.

In addition, last year, during a series of high-profile events — the G-8 Summit in Georgia, the Democratic Convention in Boston and the Republican Convention in New York, the November 2004 presidential election and other events — a task force used the information sharing provisions under Section 203(d) as part and parcel of performing its critical duties. The 2004 Threat Task Force was a successful inter-agency effort where there was a robust sharing of information at all levels of government.

Now perhaps these big meetings faced an Al Qaeda threat in 2004 that the G-20 didn’t face in 2010. But I’m cognizant that PATRIOT defines “foreign intelligence information” to include “sabotage,” which might be used to treat legitimate “issue-based extremists” as terrorists.

We already know that anti-war protestors (the kind of “single-issue extremists” who protested in big numbers in 2004) were investigated as terrorists as early as 2002, though DOJ professed to be unable to connect all the investigations together. Indeed, precisely that kind of “criminal” investigation started in local FBI offices is the kind of information that might be shared under PATRIOT 203(d) with a Task Force facing protestors.

We don’t know, from this one paragraph, what kind of information the government shared in 2004 in the name of “foreign intelligence.” But the 2010 Canadian example suggests the government is still (or was, as recently as 2010) treating legitimate protestors as outside infiltrators. Which makes it likely that the US did the same back during the height of anti-Iraq War protests.

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Emptywheel Twitterverse
emptywheel On September 2, 2015, President Obama finally showed he could master August recess.
emptywheel @AriRabinHavt Talked abt Willie Wonka in high school valedictory speech, one I almost couldn't give bc Admin thought I'd call for rebellion.
emptywheel @AriRabinHavt I am in almost every single pop culture subject a failure. Exceptions include Willie Wonka & football.
emptywheel @AriRabinHavt Probably a bad meme given that, in the end, Charlie got the whole kit and caboodle.
emptywheel Phone dragnet will be in 2 courtrooms today: in Leon's courtroom on remand (hopefully Klayman brings his new proof) & 2nd C w/ACLU.
emptywheel RT @davidshepardson: .@POTUS gets to 34 Democrats even as @SenGaryPeters remains one of a shrinking number of undecided Senate Democrats
emptywheel @tryggth Right: Could be Tor. Could be something proprietary to ISIS. Even if latter, may be necessary to do journalism. @Um_Uras @AJENews
bmaz This is great-----> Kareem Abdul-Jabbar: This is the difference between Donald Trump and Bernie Sanders
bmaz @imillhiser @fedcourts He has some pie in the sky trolls though. I called him a Don Qixote sideshow a week or so ago+trolls appeared.
emptywheel @lib_ertarian_ Sure. But don't tell THEM that bc they think it will work.
emptywheel RT @ErikLoomis: Can we replace Iowa and New Hampshire primary season with Louisiana and New Mexico so we can talk about real food? https:/…
bmaz RT @fedcourts: @imillhiser I'm not even remotely interested in understanding this kooky president in waiting feature
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