Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)
But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.
The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.
The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,
Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.
I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.
At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.
But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.
Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.
I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.
But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.
One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.
Yesterday, Pat Leahy issued a Sunshine Week statement criticizing Richard Burr for attempting to reclaim all copies of the Torture Report, but also complaining that State and DOJ haven’t opened their copy of the Torture Report.
I also was appalled to learn that several of the agencies that received the full report in December have not yet opened it. In a Freedom of Information Act (FOIA) lawsuit seeking release of the full report, Justice Department and State Department officials submitted declarations stating that their copies remain locked away in unopened, sealed envelopes. I do not know if this was done to attempt to bolster the government’s position in the FOIA lawsuit, or to otherwise avoid Federal records laws. I certainly hope not. Regardless of the motivation, it was a mistake and needs to be rectified.
The executive summary of the torture report makes clear that both the State Department and the Justice Department have much to learn from the history of the CIA’s torture program. Both agencies were misled by the CIA about the program. Both should consider systemic changes in how they deal with covert actions. Yet neither agency has bothered to open the final, full version of the report, or apparently even those sections most relevant to them.
Today, Ron Wyden issued a Sunshine Week release linking back to a February 3 letter Eric Holder is still ignoring. The letter — which I wrote about here — addresses 4 things: 1) the unclear limits on the President’s ability to kill Americans outside of war zones 2) the common commercial service agreement OLC opinion that should be withdrawn 3) some action the Executive took that Wyden and Russ Feingold wrote Holder and Hillary about in late 2010 and 4) DOJ’s failure to even open the Torture Report. Wyden’s statement, lumps all these under “secret law.”
U.S. Senator Ron Wyden, D-Ore., renewed his call for Attorney General Eric Holder to answer crucial questions on everything from when the government believes it has the right to kill an American to secret interpretations of law. The Justice Department has ignored these questions or declined to answer them, in some cases for years.
“It is never acceptable to keep the basic interpretations of U.S. law secret from the American people. It doesn’t make our country safer, and erodes the public’s confidence in the government and intelligence agencies in particular,” Wyden said. “While it is appropriate to keep sources, methods and operations secret, the law should never be a mystery. Sunshine Week is the perfect time for the Justice Department to pull back the curtains and let the light in on how our government interprets the law.”
This may be secret law.
But I find it interesting that both Wyden’s letter and Leahy’s statement tie covert operations to the lessons from the Torture Report.
There are many reasons DOJ (and FBI) are probably refusing to open the Torture Report. The most obvious — the one everyone is pointing to — is that by not opening it, these Agencies keep it safe from the snooping FOIAs of the ACLU and Jason Leopold.
But the other reason DOJ and FBI might want to keep this report sealed is what it says about the reliability of the CIA.
The CIA lied repeatedly to DOJ, FBI, and FBI Director Jim Comey (when he was Deputy Attorney General) specifically. Specifically, they lied to protect the conduct of what was structured as a covert operation, CIA breaking the law at the behest of the President.
Of course, both DOJ generally and FBI specifically continue to partner with CIA as if nothing has gone on, as if the spooks retain the credibility they had back in 2001, as if they should retain that credibility. (I’m particularly interested in the way FBI participated in the killing of Anwar al-Awlaki, perhaps relying on CIA’s claims there, too, but it goes well beyond that.)
That’s understandable, to a point. If DOJ and the FBI are going to continue pursuing (especially) terrorists with CIA, they need to be able to trust them, to trust they’re not being lied to about, potentially, everything.
Except that ignores the lesson of the Torture Report, which is that CIA will lie about anything to get DOJ to rubber stamp criminal behavior.
No wonder DOJ and FBI aren’t opening that report.
Man, I must have written about this letter Ron Wyden sent to John Brennan during his confirmation process 15 times (of which just a few are linked below). Which is why I’m so fascinated by the back and forth between Wyden’s office (the staffer’s name is redacted) and ODNI, largely Bob Litt, both before and after Wyden sent the letter on January 14, 2013. (Many many kudos to Zack Sampson who FOIAed it through MuckRock.)
Wyden’s office submitted the letter for a declassification review on January 11, 2013. Wyden’s office did not get an answer before he sent it. And on January 15, Bob Litt complained,
I have a concern that there are several references in this letter that are not only classified but compartmented.
So the staffer writes back letting Litt know that he or she had unclassified comments by Executive Branch officials for all the references, and he or she will happily share it. To which Litt responded (on January 17),
Although I am dubious, since there are statements in there that assume as fact things that we have recently succeeded in convincing a judge remain classified, I’ll take a look.
It went on for a while (the email thread is from page 21 to 24), with Litt complaining some more, promising Brennan wouldn’t answer questions about it, and the staffer ultimately pointing out that the reason they keep asking publicly is because ODNI won’t provide answers even in classified form (this exchange precedes Clapper’s lies about the dragnet — about which most of the other documents released under this FOIA pertain — by two months).
What Litt was talking about, clearly, was the Administration’s killing of Anwar al-Awlaki, the memos authorizing which Judge Colleen McMahon, citing Alice in Wonderland for the bizarreness of it all, had just ruled remained exempt from FOIA on January 2, 2013.
In other words, Litt was suggesting that Wyden should not have said the following — which cites McMahon!! — because McMahon had ruled that the government did not have to give the OLC memos authorizing the Awlaki killing to ACLU and NYT, which is rather different from ruling they didn’t have to share such information with the Intelligence Committee or claiming that Wyden could not refer to official comments in a letter to someone who made those comments because citing back those comments made them classified.
I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations. Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.
Both you and the Attorney General gave public speeches on this topic early last year, and these speeches were a welcome step in the direction of more transparency and openness, but as I noted at the time, these speeches left a large number of important questions unanswered. A federal judge recently noted in a Freedom of Information Act case that “no lawyer worth his salt would equate Mr. Holder’s statements with the sort of robust analysis that one finds in a properly constructed legal opinion,” and I assume that Attorney General Holder would agree that this was not his intent.
As Wyden noted, both Brennan and Holder had given big dog-and-pony shows that were clearly about killing Awlaki, and yet Bob Litt wanted to prevent Wyden from pressuring Brennan to turn over the actual legal authorizations to the Intelligence Community’s oversight committee? Really?
Ah well, it all worked out for the forces of good, as when the Committee threatened to hold up Brennan’s confirmation, someone leaked the White Paper to Mike Isikoff that therefore had to be shared with Jason Leopold that ultimately led McMahon to liberate the opinions themselves.
Which is probably precisely what Bob Litt was worried about.
Today’s SSCI public hearing was remarkably useful, in spite of Chairman Burr’s interrupting a chain of serious questions to ask a clown question of National Counterterrorism Center head Nick Rasmussen. Roy Blunt, Marco Rubio, and Angus King all asked questions about Authorizations to Use Military Force that will be useful in the upcoming debate.
The highlight, however, came when Dianne Feinstein asked Rasmussen whether the claims of great harm — provided to her just before she released the Torture Report in December — had proven to be correct.
Feinstein: And I have one other question to ask the Director. Um, Mr. Director, days before the public release of our report on CIA detention and interrogation, we received an intelligence assessment predicting violence throughout the world and significant damage to United States relationships. NCTC participated in that assessment. Do you believe that assessment proved correct?
Rasmussen: I can speak particularly to the threat portion of that rather than the partnership aspect of that because I would say that’s the part NCTC would have the most direct purchase on, and I can’t say that I can disaggregate the level of terrorism and violence we’ve seen in the period since the report was issued, disaggregate that level from what we might have seen otherwise because, as you know, the turmoil roiling in those parts of the world, not that part of the world, those parts of the world, the Middle East, Africa, South Asia, there’s a number of factors that go on creating the difficult threat environment we face.
So the assessment we made at the time as a community was that we would increase or add to the threat picture in those places. I don’t know that looking backwards now, I can say it did by X% or it didn’t by X%. We were also, I think, clear in saying that there’s parts of the impact that we will not know until we have the benefit of time to see how it would play out in different locations around the world.
Feinstein: Oh boy do I disagree with you. But that’s what makes this arena I guess. The fact in my mind was that the threat assessment was not correct.
Note, Ron Wyden used his one question to get Rasumussen to admit that he had only read the Torture Report summary in enough detail to conduct the threat assessment. Wyden informed Rasmussen there were other parts in the still-classified sections that he should be aware of as NCTC head.
As noted, Ron Wyden used Eric Holder’s imminent departure as an opportunity to point to some secrets that he believes should be told. One of those pertains to what the 2003 OLC opinion on common commercial service agreements refers to.
Second, I have written to you on multiple occasions about a particular legal opinion from the Justice Department’s Office of Legal Counsel (OLC) interpreting common commercial service agreements. As I have said, I believe that opinion is inconsistent with the public’s understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is party to one of these agreements can consider whether their agreement should be revised or modified.
In her December 2013 confirmation hearing to be General Counsel of the CIA, the deputy head of the OLC stated that she would not rely on this opinion today. While I appreciate her restraint, I believe the wisest course of action would be for you to withdraw and declassify this opinion, so that other government officials are not tempted to rely on it in the future. I urge you to take these actions as soon as practicable, since I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch.
As I laid out in October 2013, Wyden has been trying to liberate this memo since before summer 2012, and he has (as he now is doing) renewed his request every time cybersecurity bills come up (and then some).
Some time last summer, Ron Wyden wrote Attorney General Holder, asking him (for the second time) to declassify and revoke an OLC opinion pertaining to common commercial service agreements. He said at the time the opinion “ha[d] direct relevance to ongoing congressional debates regarding cybersecurity legislation.”
That request would presumably have been made after President Obama’s April 25, 2012 veto threat of CISPA, but at a time when several proposed Cybersecurity bills, with different information sharing structures, were floating around Congress.
Wyden asked for the declassification and withdrawal of the memo again this January as part of his laundry list of requests in advance of John Brennan’s confirmation. Then, after having been silent about this request for 8 months (at least in public), Wyden asked againon September 26.
Since then, we’ve learned that the memo dates to 2003, and was a matter of first impression when it was written.
I’ve been writing about this memo since 2013, but I don’t have the legal support to FOIA something DOJ is obviously pretty embarrassed about.
But why hasn’t big tech? Why haven’t other companies that sign common commercial service agreements? Why hasn’t some lawyered up company — or lawyered up trade group — sued for this thing, as it clearly may affect their businesses?
Or would they just rather prefer not to know?
Via Ali Watkins’ story on Dianne Feinstein’s vindication by the Senate parliamentarian, Ron Wyden has written Eric Holder a letter listing all the unfinished business he’d like the Attorney General to finish before going off to his sinecure defending banks (my assessment, not Wyden’s).
Three of the requests are familiar:
But a fourth is, as far as I know, new:
I have asked repeatedly over the past several years for the Department of Justice’s opinion on the lawfulness of particular conduct that involved an Executive Branch agency. I finally received a response to these inquiries in June 2014; however the response simply stated that the Department of Justice was not statutorily obligated to respond to my question. I suppose there my not be a particular law that requires the Department to answer this question, but this response is nonetheless clearly troubling. My question was not hypothetical, and I did not ask to see any pre-decisional legal advice — I simply asked whether the Justice Department believed that the specific actions taken in this case were legal. It would be reasonable for the Department to say “Yes, this conduct was lawful” and explain why, or to say “No, this appears to have been unlawful” and take appropriate follow-up action. Refusing to answer at all is highly problematic and clearly undermines effective oversight of government agencies, especially since the actions in question were carried out in secret. For these reasons, I renew my request for an answer to the question, and I hope that you can help provide one.
Uh, with all due respect, Senator, I believe Holder has given you an answer: While I don’t know what the actions in question are, it seems the answer is, “Yes, those actions were illegal, but since we’re not going to do anything about it, we’re not going to tell you that.”
Or perhaps, “Yes, those actions were illegal. But if the President orders them, we don’t consider them illegal.”
Wyden has apparently been asking this for “several years.” While that doesn’t entirely rule out CIA spying on SSCI (which, after all, DOJ has answered by not prosecuting), it seems it is some other action he learned about under Obama’s tenure.
So is DOJ refusing to prosecute some clearly illegal action that happened under Obama?
Tomorrow is dragnet day, the next 90-day reauthorization for the dragnet.
In advance of that date, Pat Leahy just called on President Obama to simply let the dragnet end.
The President can end the NSA’s dragnet collection of Americans’ phone records once and for all by not seeking reauthorization of this program by the FISA Court, and once again, I urge him to do just that. Doing so would not be a substitute for comprehensive surveillance reform legislation – but it would be an important first step.
Leahy joins 4 other Democrats who have already called for the President to unilaterally stop the dragnet.
At a hearing last month, Adam Schiff suggested to DIRNSA Mike Rogers that they move forward without waiting for a new law.
“There’s nothing in statute that requires the government to gather bulk data, so you could move forward on your own with making the technological changes,” Schiff said. “You don’t have to wait for the USA Freedom Act.”
There’s no reason for the NSA to wait for congressional approval to put additional limits on the program “if you think this is the correct policy,” Schiff added. “Why continue to gather the bulk metadata if [Obama administration officials] don’t think this is the best approach?”
And back in June, Senators Wyden, Udall, and Heinrich not only made a similar suggestion in a letter to the President, but laid out how Obama could achieve what he says he wants to without waiting for legislation.
But the President is not going to end the dragnet. Heck, for all we know, FISC has already signed the reauthorization.
Mind you, it may be that President Obama can’t start the new-and-improved dragnet without offering providers immunity and compensation. But if Obama can’t simply end the dragnet without offering telecoms and second level contractors broad immunity, then he’s obviously planning on something more exotic than just regular phone contact chaining.
Kim Zetter has an interview with Ron Wyden that goes over a number of things I have already reported. She describes him hedging when asked when he first learned of the phone dragnet; as I have shown the government did not brief the Internet dragnet to the Intelligence Committees, not even during the PATRIOT reauthorization in 2005. Wyden describes the months — “literally months” –during which he tried to get the Intelligence Community to correct what Keith Alexander had said to DefCon before he asked James Clapper the question he is now so famous for; I laid that out here and here. Wyden describes how — “incredible as it sounds” — the Bush Administration shut down NSA’s back door search authorities., which I noted here. Zetter and Wyden also discuss how to manage zero day exploits.
But the most important detail in the interview, in my opinion, comes where Wyden makes clear he doesn’t know enough about what the government does under EO 12333.
But no one, not even lawmakers on Capitol Hill, have a full grasp of how EO 12333 is being used.
Wyden says, “I’m not sure we’re at the bottom or close to it” when it comes to understanding how it’s being used.” Wyden is suspicious that the White House and intelligence community have agreed to halt the phone records collection program, in the wake of intense criticism, only because the spy agency has other tricks to get the same data, possibly through EO 12333.
“The intelligence community is endorsing eliminating bulk-collection of phone records, and it makes me wonder what are the authorities under 12333 [through which they might do the same thing]?” he asks. “You can get a bill passed and everybody says, ‘Hey we banned bulk collection.’… [Then] we see the government go off in another direction. I will tell you that I don’t know today the full ramifications of 12333 on bulk collection. But I’m going to be spending a lot of time digging into it.”
I had pointed to Wyden’s concern about this issue when he raised it at the turn of the year and noted that the Administration made public its belief it can engage in the phone and Internet dragnet without any Congressional authorization just as the USA Freedom Act debate resumed.
But Wyden’s confirmation that he doesn’t know what the government does overseas raises questions about, first, whether he knows what the government did with the Internet dragnet when he and Udall convinced the government to end the domestic collection of it in 2011. But it also underscores just how empty are the promises that there is adequate oversight of the NSA’s work.
If someone on the Intelligence Committees (a critic, admittedly, but he is one of the legal overseers of the Agency) doesn’t know, and doesn’t think he’d necessarily know, if the government replaced a congressionally limited program with the same program overseas, that means there’s no way the Intel Committees could ensure that the government had stopped practices Congress told it to stop.
Of course, given that Wyden got legislation passed in 2004 defunding any data mining of Americans only to have the Bush authorized dragnet continue, that must be a familiar position for the Senator.
In an editorial calling on Congress to pass the USA Freedom Act, the USA Today makes this claim.
Obama’s proposal last January — to leave the data with phone companies, instead of with the government — can’t happen without a new law. And, as in so many other areas, the deeply divided Congress has failed to produce one.
I don’t know whether that is or is not the case.
I do know 3 Senate Intelligence Committee members say it is not the case.
Ron Wyden, Mark Udall, and Martin Heinrich wrote Obama a letter making just this point in June. They argued that Obama could accomplish most, if not all, of what he claimed he wanted without legislation, largely with a combination of Section 215 Orders to get hops and Pen Registers to get prospective collection.
[W]e believe that, in the meantime, the government already has sufficient authorities today to implement most, if not all, of the Section 215 reforms laid out in your proposal without delay in a way that does not harm our national security. More comprehensive congressional action is vital, but the executive branch need not wait for Congress to end the dragnet collection of millions of Americans’ phone records for a number of reasons.
First, we believe that the Foreign Intelligence Surveillance Court’s (FISC) expansive interpretation of the USA PATRIOT Act to allow the collection of millions of Americans’ phone records makes it likely that the FISC would also agree to a more narrowly-drawn interpretation of the law, without requiring further congressional action. Certainly, it seems likely that the FISC would permit the executive branch to use its current authorities to obtain phone records up to two “hops” from a suspicious phone number or to compel technical assistance by and compensation for recipients of court orders. Unless the FISC has already rejected such a request from the government, it does not seem necessary for the executive branch to wait for Congress before taking action.
Second, we believe that the FISC would likely approve the defined and limited prospective searches for records envisioned under your proposal pursuant to current USA PATRIOT Act Section 214 pen register authorities, given how broadly it has previous interpreted these authorities. Again, we believe it is vital for Congress to enact reforms, but we also believe that the government has sufficient authorities today under the USA PATRIOT Act to conduct these targeted prospective searches in the interim.
Finally, although we have seen no evidence that the government has needed the bulk phone records collection program to attain any time-sensitive objectives, we agree that new legislation should provide clear emergency authorities to allow the government to obtain court approval of individual queries after the fact under specific circumstances. The law currently allows prospective emergency acquisitions of call records under Section 403 of the Foreign Intelligence Surveillance Act (FISA), and the acquisition of past records without judicial review under national security letter authorities. While utilizing a patchwork of authorities is not ideal, it could be done on an interim basis, while Congress works to pass legislation.
Just weeks before they sent this, Deputy Attorney General James Cole had seemed to say they could (if not already were) getting hybrid orders, in that case mixing phone and location. So it seems like DOJ is confident they could use such hybrid orders, using Section 215 for the hops and Pen Registers for the prospective collection (though, given that they’re already using Section 215 for prospective collection, I’m not sure why they’d need to use hybrids to get anything but emergency orders).
And it makes sense. After all, the public claims about what the Call Detail Record provision would do, at least, describe it as a kind of Pen Register on steroids, 2-degrees of Pen Register. As the Senators suggest, FBI already gets two-degree information of historical records with mere NSLs, so it’d be surprising if they couldn’t get 2 degrees prospectively with a court order.
So at least according to three members of the Senate Intelligence Committee, USA Today is simply wrong.
Mind you, I’m not entirely convinced they’re right.
That’s because I suspect the new CDR provision is more than a Pen Register on steroids, is instead something far more intrusive, one that gets far beyond mere call records. I suspect the government will ask the telecoms to chain on location, address books, and more — as they do overseas — which would require far more than a prospective Pen Register and likely would require super immunity, as the bill provides.
I suspect the Senators are wrong, but if they are, it’s because Obama (or his Intelligence Community) wants something that is far more invasive then they’ve made out.
Still, for USAF supporters, there seems no question. If all Obama wants to replace the phone dragnet is prospective 2-degree call (not connection) chaining on RAS targets, he almost certainly has that authority.
But if he needs more authority, then chances are very good he’s asking for something far more than he has let on.
Update: Note, USAT makes at least one other clear error in this piece, as where it suggests the “the program” — the phone dragnet — imposes costs on cloud companies like Microsoft and Google.
The very first thing I remarked on when I read the Yahoo FISCR opinion when it was first released in 2009 was this passage.
The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.9 See, e.g., United States v. Kahn, 415 U.S. 143, 157-58 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976). The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26 in original release; 30 in current release)
The government claimed to FISCR that it did not maintain a database of incidentally collected information from non-targeted US persons.
Barring some kind of neat parse, I didn’t buy the claim, not even in 2009.
Since then, we’ve found out that — barring some kind of neat parse — I was absolutely right. In fact, they are doing back door searches on this data, especially at FBI.
What I’m particularly intrigued by, now, is the timing.
FISCR said that in an opinion dated August 22, 2008 — over a month after the July 10, 2008 passage of the FISA Amendments Act. I have not yet found evidence of when the government said that to FISCR. It doesn’t appear in the unredacted part of their Jun 5, 2008 Merits brief (which cites Kahn but not Schwartz; see 49-50), though it might appear behind the redaction on 41. Of note, the April 25, 2008 FISC opinion doesn’t even mention the issue in its incidental collection discussion (starting at 95), though it does discuss amended certifications filed in February 2008.
So I’m guessing the government made that representation at the hearing in June, 2008.
We know, from John Bates’ rationale for authorizing NSA and CIA back door searches, such back door searches were first added to FBI minimization procedures in 2008.
When Bates approved back door searches in his October 3, 2011 opinion, he pointed to FBI’s earlier (and broader) authorities to justify approving it for NSA and CIA. While the mention of FBI is redacted here, at that point it was the only other agency whose minimization procedures had to be approved by FISC, and FBI is the agency that applies for traditional FISA warrants.
[redacted] contain an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information. See [redacted]. In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definitions of minimization procedures at 50 U.S.C. §§ 1801(h) and 1821(4). It follows that the substantially-similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.
So since 2008, FBI has had the ability to do back door searches on all the FISA-authorized data they get, including taps targeting US persons.
The FBI Minimization procedures submitted with the case all date to the 1990s, though a 2006 amendment changing how they logged the identities of US persons collected (note, in 2011, John Bates was bitching at FBI for having ignored an order to reissue all its minimization procedures with updates; I can see why he complained).
As described in the Government’s response of June 16, 2006, identities of U.S. persons that have not been logged are often maintained in FBI databases that contain unminimized information. The procedures now simply refer to “the identities” of U.S. persons, acknowledging that the FBI may not have previously logged such identities.
But there’s reason to believe the FBI minimization procedures — and this logging process — was changed in 2008, because a government document submitted in the Basaaly Moalin case — we know Moalin was wiretapped from December 2007 to April 2008, so during precisely the period of the Yahoo challenge, though he was not indicted until much later — referenced two sets of minimization procedures, seeming to reflect a change in minimization during the period of his surveillance (or perhaps during the period of surveillance of Aden Ayro, which is how Moalin is believed to have been identified).
That is, it all seems to have been happening in 2008.
The most charitable guess would be that explicit authorization for back door searches happened with the FAA, so before the FISCR ruling, but after the briefing.
Except in a letter to Russ Feingold during early debates on the FAA, Mike Mukasey and Mike McConnell (the latter of whom was involved in this Yahoo fight) strongly shot down a Feingold amendment that would have required the government to segregate all communications not related to terrorism (and a few other things), and requiring a FISA warrant to access them.
The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.
Then it launches into a tirade that lacks any specifics:
It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.
As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.
Even 5 years ago, the language about the “devastating impact” segregating non-terrorism data might have strongly suggested the entire point of this collection was to provide for back door searches.
But that letter was dated February 5, 2008, before the FISCR challenge had even begun. While not definitive, this seems to strongly suggest, at least, that the government planned — even if it hadn’t amended the FBI minimization procedures yet — to retain a database of incidentally data to search on, before the government told FISCR they did not.
Update: I forgot a very important detail. In a hearing this year, Ron Wyden revealed that NSA’s authority to do back door searches had been closed some time during the Bush Administration, before it was reopened by John “Bates stamp” Bates.
Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans. This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today. [my emphasis]
When I noted that Wyden had said this, I guessed that the government had shut down back door searches in the transition from PAA to FAA, but that seems less likely, having begun to review these Yahoo documents, then that it got shut down in response to the hospital confrontation.
But it shows that more extensive back door searches had been in place before the government implied to the FISCR that they weren’t doing back door searches that they clearly were at least contemplating at that point. I’d really like to understand how the government believes they didn’t lie to the FISCR in that comment (though it wouldn’t be the last time they lied to courts about their databases of Americans).