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Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

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Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

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Ron Wyden: Liar, Liar, Alexander Pants on Fire

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Ron Wyden, Dianne Feinstein, and a few other Senators are conducting what constitutes “a debate” on the FISA Amendments Act extension.

The highlight of the debate, thus far, came when DiFi promised to wave a classified letter answering some of Ron Wyden’s questions around in front of the TV. Mind you, she has not yet fulfilled that promise. But she made the promise, so I am glued to the screen waiting for her to embody the ridiculous nature of this so-called debate by waving her letter in lieu of telling us what it actually says.

Aside from that excitement, however, the high point of the debate has come from Ron Wyden, repeatedly suggesting NSA head General Keith Alexander is a liar.

At issue was a speech Alexander made in July at the DefCon hackers conference. He made two claims that Wyden and Mark Udall questioned in an October letter.

Specifically, you said:

We may, incidentally, in targeting a bad guy hit on somebody from a good guy, because there’s a discussion there. We have requirements from the FISA Court and the Attorney General to minimize that, which means nobody else can see it unless there’s a crime that’s been committed.

We believe that this statement incorrectly characterized the minimization requirements that apply to the NSA’s FISA Amendments Act collection, and portrayed privacy protections for Americans’ communications as being stronger than they actually are. We urge you to correct this statement, so that Congress and the public can have a debate over the renewal of this law that is informed by at least some accurate information about the impact it has had on Americans’ privacy.

You also stated, in response to the same question, that “…the story that we have millions or hundreds of millions of dossiers on people is absolutely false.” We are not entirely clear what the term “dossier” means in this context, so we would appreciate it if you would clarify this remark. Specifically we ask that you please answer the following questions:

  • The intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the FISA Amendments Act, and has even declined to estimate the scale of this collection. Are you certain that the number of American communications collected is not “millions or hundreds of millions”? If so, then clearly you must have some ability to estimate the scale of this number, or at least some range in which you believe it falls. If this is the case, how large could this number possibly be? How small could it possibly be?
  • Does the NSA collect any type of data at all on “millions or hundreds of millions of Americans”?

Alexander replied to Wyden and Udall on November 13. In it, he responded to the first Wyden/Udall question by claiming he was speaking about a foreign intelligence context.

I noted at the outset that NSA has a foreign intelligence mission, and my subsequent reference focused on the type of circumstance in which U.S. person information may be disseminated when this foreign intelligence requirement is not met (e.g., when there is evidence of a crime).

He went on to rehearse the legal requirements for minimization, which only applies to information not deemed “foreign intelligence information.” That is, he basically admitted that information deemed to be foreign intelligence information can be shared.

Alexander answered the second Wyden/Udall question by dodging.

Second, my response did not refer to or address whether it is possible to identify the number of U.S. person communications that may be lawfully but incidentally intercepted pursuant to foreign intelligence collection directed against non-U.S. persons located outside the United States as authorized under FAA 702.

In your letter, you asked for unclassified answers to several questions that you feel are important to allow the public to better understand my remarks delivered at the conference. While I appreciate your desire to have responses to these questions on the public record, they directly relate to operational activities and complete answers would necessarily include classified information essential to our ability to collect foreign intelligence.

Wyden referred to these letters at least twice in his various speeches in this “debate.” And while he has been careful to suggest that Alexander may have just misspoke, he has repeatedly made it clear that Alexander lied when he said US person data could not be shared.

I don’t know why General Alexander described minimization as he did. But why did it take Udall and I to make big push to correct?

The implication, it seems, is that the government has simply deemed all the US person information they collect to be foreign intelligence (indeed, elsewhere Jeff Merkley talked about how the “relevant to an investigation” standard makes all conceivable information context for foreign intelligence), meaning minimization requirements are largely meaningless.

In response to Alexander’s claims on hundreds of millions of dossiers, Wyden noted, over and over again, that in spite of NSA’s refusal to answer the question of how many Americans’ data has been collected, Alexander did not in his response–and has not since–denied that NSA keeps hundreds of millions of dossiers on people.

Director of NSA would not provide public answer on whether NSA keeps hundreds of millions of dossiers on people.

Clearly, Alexanders denial that NSA keeps dossiers (which itself stems from claims former NSA coder William Binney made) is simply a word game about the meaning of dossier. NSA doesn’t have dossiers, you see. It has information on hundreds of millions of Americans.

Information–that Wyden makes clear–is not subject to the plain meaning of minimization requirements.

DiFi and the Silly Season of Senate Committee Music Chairs

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A little over an hour ago, there was some rather notable news tweeted out by CNN:

Intel cte’s @SenFeinstein will give up the chair and move to Judiciary, source tells @CapitolHillCNN. @SenatorReid to announce today

I have talked to both sources at both the Senate Judiciary Committee and Personnel offices and have yet to hear a denial. This is, then, significant news as to a complete reshuffling of key Majority Senate Leadership assuming it continues to bear out.

First off, a tenured Senator like Feinstein does not leave a high value Committee Chairmanship without another, or something higher, on the offer. CNN said she it is to “move to Judiciary”. But DiFi has long been a member of the SJC, that can only portend she will then become Chairman of Judiciary.

Ryan Grim at Huffington Post has also picked up this shuffle, and beat me to the punch by a few minutes:

If Feinstein does take over leadership of the Judiciary Committee, that could ease the passage in the Senate of a renewed assault weapons ban, which was passed under President Bill Clinton in 1994 but expired in 2004. The shooting rampage on Friday in Newtown, Conn., in which 20 children and six adults were murdered by a gunman with a military-style assault weapon and high-capacity magazines, has renewed calls for stricter gun control legislation.

On Tuesday, speaking in the Capitol before the party’s weekly caucus lunch, Feinstein told reporters who had asked her whether she will jump to Judiciary, “Keep tuned. I think it is [going to become open], and I think it’ll happen.”

On Monday, Sen. Daniel Inouye (D-Hawaii) who was the chairman of the powerful Senate Appropriations Committee, passed away at the Walter Reed National Military Medical Center. Now that Inouye’s post is empty, Sen. Patrick Leahy (D-Vt.) is rumored to be looking at taking over Appropriations — in turn opening up the leadership slot at Judiciary. Feinstein could then move from her current spot as chair of the Senate Intelligence Committee to chair Judiciary.

That is good, fast reporting and coincides with what I can discern. And Appropriations Chair is a long time traditional home for the Senate Pro-Tem, which Pat Leahy became with yesterday’s passing of Inouye.

So, what about SSCI? Next in line would, by seniority, be Jay Rockefeller. But, as Mother Jones’ Nick Baumann pointed out, Rockefeller gave up leadership at Intel nearly three years ago to take over the Commerce, Science and Transportation Committee helm, and there is no reason to think he would double back. That gave a brief glimmer of hope that Ron Wyden might get the nod at SSCI, but HuffPo’s Grim, in a tweet, thinks he is more likely to take over the helm of the Senate Energy and Natural Resources Committee for the outgoing Jeff Bingaman of New Mexico, who did not seek reelection. That would mean the next senior Democrat on SSCI as Barbara Mikulski of Maryland.

Now, if I were Wyden, I would want the SSCI job over Energy. It is likely most progressives would like him there as well, which is why the smart money likely says Reid talks him into the Energy Chair.

So, we are into the Congressional equivalent of Formula One silly season; i.e. the end of the year shuffling of drivers before the season is really over. The one real wildcard here is Wyden.

Remember When Obama Thought the FISA Amendments Act Was Imperfect?

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Four years ago, when Obama caved and supported the FISA Amendments Act, he said in part,

I want to take this opportunity to speak directly to those of you who opposemy decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

[snip]

Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. I do so with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

[snip]

I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country. That is why we have built the largest grassroots campaign in the history of presidential politics, and that is the kind of White House that I intend to run as President of the United States — a White House that takes the Constitution seriously,conducts the peoples’ business out in the open, welcomes and listens to dissenting views, and asks you to play your part in shaping our country’s destiny.

Since that time, Obama’s DOJ has litigated the FISA Amendments Act so aggressively that it has, in fact, completely gutted the deterrent effect of the law. It has refused to share with all of Congress what activities the government actually conducts under the law, much less with American citizens. It has refused to tell Congress–even the Intelligence Committees–how many Americans have been spied on under the program. And it has been caught violating the Fourth Amendment.

And yet here’s what Obama’s Administration said today about the extension for the FISA Amendments Act, which essentially will extend the bill Candidate Obama once admitted still had problems for five years, all the way through his second term.

The Administration strongly supports H.R. 5949. The bill would reauthorize Title VII of the Foreign Intelligence Surveillance Act (FISA), which expires at the end of this year. Title VII of FISA allows the Intelligence Community to collect vital foreign intelligence information about international terrorists and other important targets overseas, while providing protection for the civil liberties and privacy of Americans. Intelligence collection under Title VII has produced and continues to produce significant information that is vital to defend the Nation against international terrorism and other threats. The Administration looks forward to working with the Congress to ensure the continued availability of this critical intelligence capability.

Change we can believe in.

Using Pensions to “Punish” “Leaks” Will Subject Clearance Holders to Arbitrary Power

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The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

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The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

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Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.

Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

If Everything NSA Does is “Auditable,” Why Can’t NSA Tell Us How Many Americans They’ve Spied On?

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NSA Director Keith Alexander just said this to the hackers at DefCon (while wearing an absolutely ridiculous hacker costume):

“We get oversight by Congress, both intel committees and their congressional members and their staffs,” he continued, “so everything we do is auditable by them, by the FISA court … and by the administration. And everything we do is accountable to them…. We are overseen by everybody. And I will tell you that those who would want to weave the story that we have millions or hundreds of millions of dossiers on people is absolutely false.”

But a month ago, Alexander’s Inspector General told Ron Wyden that an estimate of the number of people inside the United States who have had their communications collected or reviewed under the FISA Amendments Act “was beyond the capacity of his office.” Of note, the IG and NSA leadership–that is, presumably Alexander himself–claimed such a review would “violate the privacy of U.S. persons.”

I look forward to Ron Wyden’s response to Alexander’s seeming reversal on that earlier letter with claims of this unlimited auditability.

Why Are FAA Boosters Satisfied with Inadequate Oversight?

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Julian Sanchez hosted a Cato event yesterday that examined surveillance generally and the FISA Amendments Act specifically. At it, Ron Wyden presented his concerns about the FISA Amendments Act and other surveillance, and then ACLU’s Michelle Richardson and NYT’s Eric Lichtblau added their own views.

There was one question asked during the question period claiming that the program undergoes adequate reviews. The questioner was Georgetown’s Director of National Security Studies, Carrie Cordero, who had a role on FISA implementation until 2010, who has now reprised and expanded her comments at Lawfare.

She starts by addressing Wyden’s request that DNI to tell Congress how many Americans have had their communications “collected or reviewed.”

In particular, they have, in a series of letters, requested that the Executive Branch provide an estimate of the number of Americans incidentally intercepted during the course of FAA surveillance. According to the exchanges of letters, the Executive Branch has repeatedly denied the request, on the basis that: i) it would be an unreasonable burden on the workforce (and, presumably, would take intelligence professionals off their national security mission); and ii) gathering the data the senators are requesting would, in and of itself, violate privacy rights of Americans.

The question of whether the data call itself would violate privacy rights is a more interesting one. Multiple oversight personnel independent of the operational and analytical wings of the Intelligence Community – including the Office of Management and Budget, the NSA Inspector General, and just last month, the Inspector General of the Intelligence Community, have all said that the data call requested by the senators is not feasible. The other members of the SSCI appear to accept this claim on its face. Meanwhile, Senator Wyden states he just finds the claim unbelievable. [my emphasis]

Note, first of all, that she mischaracterizes Wyden’s request. He asked about US person communication that had been “collected or reviewed,” whereas she claimed he was asking only about incidental interception. Those are different things, and what Wyden’s interested in is far more invasive than simply having your communications sitting in a data warehouse in UT unread.

That’s important because Cordero treats one aspect of the DNI IG’s response–the privacy claim–as an “interesting question,” but then she proceeds to not answer the question. She instead reverts back to what she had correctly portrayed as NSA’s claim that NSA didn’t have the capacity because it would be “unreasonable burden on the workforce,” then asks why Wyden doesn’t believe that claim.

Remember, the privacy claim was raised solely in terms of whether the NSA’s Inspector General could conduct a review, not whether NSA analysts should be pulled off reviewing intercepts to find out how many of them are Americans. So if that claim is not credible–and ultimately, she doesn’t say it is–then NSA IG’s sole remaining rationale is a manpower one.

Frankly, if it would take that much manpower to come up with an answer, it says the program isn’t being tracked adequately.

Cordero then gets to the jist of a comment she made at the hearing: that there are a bunch of reviews which provide adequate oversight.

Meanwhile, the assertion of today’s program’s title that the FAA enables “mass spying without accountability,” is debunked by the SSCI’s own report issued on June 7. The intelligence committees have been on the receiving end of a mountain of reports describing FAA activities, the FISA Court’s reviews, and the Executive Branch’s own compliance reviews. The SSCI report, and the additional written views of Senator Feinstein (D-CA), the Committee’s Chair, states that the statutorily-mandated reporting requirements “provide the Committee with extensive visibility into the application of…minimization procedures,” and have enabled the Committee to conduct “extensive” and “robust” oversight. The report goes on to detail all of the different categories of reports and briefings that have been provided to the Committee to facilitate their oversight role, in accordance with the National Security Act of 1947, as amended. [my emphasis]

Cordero claims that the SSCI report and DiFi’s additional reviews boast about reporting requirements. But only the word “extensive” appears in the report approved by SSCI as a whole, and it appears to simply repeat language from an appendix Eric Holder and James Clapper provided. The rest comes from this paragraph:

Third, the numerous reporting requirements outlined above provide the Committee with extensive visibility into the application of these minimization procedures and enable the Committee to evaluate the extent to which these procedures are effective in protecting the privacy and civil liberties of U.S. persons. Read more →

FAA Extension: The Data Gaps about Our Data Collection

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As I noted the other day, part of the point of the language Ron Wyden got declassified the other day seemed to be to call out a misrepresentation in Dianne Feinstein’s Additional Views in the Senate Intelligence Report on the extension of the FISA Amendments Act. DiFi had claimed that “the FISA Court … has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.” She neglected to mention that, “on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.”

But since Wyden pointed back to that language, I wanted to note something else in the paragraph in which DiFi’s misleading claim appears: She suggests there is substantial reporting on the program.

This oversight has included the receipt and examination of over eight assessments and reviews per year concerning the implementation of FAA surveillance authorities, which by law are required to be prepared by the Attorney General, the Director of National Intelligence, the heads of various elements of the intelligence community, and the Inspectors General associated with those elements. In addition, the Committee has received and scrutinized un- redacted copies of every classified opinion of the Foreign Intelligence Surveillance Court (FISA Court) containing a significant construction or interpretation of the law, as well as the pleadings submitted by the Executive Branch to the FISA Court relating to such opinions.

[snip]

Third, the numerous reporting requirements outlined above provide the Committee with extensive visibility into the application of these minimization procedures and enable the Committee to evaluate the extent to which these procedures are effective in protecting the privacy and civil liberties of U.S. persons. [my emphasis]

But in her sentence claiming the FISA Court keeps approving the program, she reveals that the Court is not getting all those reports.

Notably, the FISA Court, which receives many of the same reports available to the Committee, has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.

[my emphasis]

The Court receives “many” of the same reports. Which suggests it doesn’t see all of them.

That comment is all the more interesting because of something Pat Leahy said at least week’s Senate Judiciary Committee mark-up of the bill.

Congress has been provided with information related to the implementation of the FISA Amendments Act, along with related documents from the FISA Court. Based on my review of this information, and after a series of classified briefings, I do not believe that there is any evidence that the law has been abused, or that the communications of U.S. persons are being intentionally targeted.

[snip]

My views about the implementation of these surveillance authorities are based on the information we have available now – but there is more that we need to know. For example, important compliance reviews have not yet been completed by the Inspectors General of the Department of Justice or the NSA. Read more →

Ron Wyden to Dianne Feinstein: Pants on Fire

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While the language about the FISA Amendments Act that Ron Wyden just got James Clapper to clear for release (first reported by Spencer Ackerman) doesn’t exactly call Dianne Feinstein a liar, it comes close.

Wyden got the following three statements cleared:

  • A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion, the FISA Court has reached this same conclusion. [my emphasis]

The unclassified report in question is the Senate Intelligence Committee’s report from the FISA Amendments Act extension mark-up.

Third, the numerous reporting requirements outlined above provide the Committee with extensive visibility into the application of these minimization procedures and enable the Committee to evaluate the extent to which these procedures are effective in protecting the privacy and civil liberties of U.S. persons. Notably, the FISA Court, which receives many of the same reports available to the Committee, has repeatedly held that collection carried out pursuant to the Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment. [my emphasis]

The passage in question comes from DiFi’s additional views.

With this declassified language, Wyden is making clear how incomplete DiFi’s claims about the law are.

But don’t worry, James Clapper’s office says. They’ve rectified the problems. Of NSA violating minimization requirements, that is, not of the Senate Intelligence Committee Chair making grossly misleading comments to push for passage of the extension.