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Dianne Feinstein Assures Us Her Review of Targeted Killing Is Adequate

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Senate Intelligence Committee Chair Dianne Feinstein just sent out a release assuring us all that her committee keeps close watch over counterterrorism programs, including targeted killing. In her statement, she asserted that “our counterterrorism efforts are lawful under the Constitution.”

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

It’s all very nice for DiFi, a member of the Gang of Four, to tell us that her committee is keeping close watch on the assassination of American citizens.

She can say that, because she has actually seen the government’s legal memo authorizing the killing of Anwar al-Awlaki.

Except that as of 6:47PM on Monday, according to Ron Wyden’s Communication Director, the full Senate Intelligence Committee still had not seen the legal justification for the Awlaki killing. Nor had it answered simple questions, like how much evidence the government needs to meet the Executive Branch’s unilateral standards for due process. Or whether the government can kill you in the US.

For example, the government should explain exactly how much evidence the President needs in order to decide that a particular American is part of a terrorist group.  It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them.  And I’m particularly concerned that the geographic boundaries of this authority have not been clearly laid out.  Based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the President to order intelligence agencies to kill an American inside the United States.

If a member of the Senate Intelligence Committee doesn’t know the answers to those questions, DiFi is simply wrong when she claims her committee has had adequate oversight over the killing of an American citizen.

It’s all very nice that DiFi tells us this is constitutional. But right now there’s still been grossly inadequate oversight to test that claim. Hamdi required an impartial adjudicator. But at this point, I’m not convinced we’ve even fulfilled the requirements of the National Security Act.

Congress and Killing Oversight: Eric Holder v. Ron Wyden

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Eric Holder today said that giving “appropriate members of Congress” information on the “legal framework” of its operations where “lethal force is used against United States citizens” is a key part of robust oversight.

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.  Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Well, then, there simply hasn’t been robust oversight over the Anwar al-Awlaki killing.

As of a month ago–four months after Awlaki was killed–the Senate Intelligence Committee had not been provided with the legal framework for Awlaki’s kill. This, in spite of the fact that SSCI member Ron Wyden had been requesting that framework for over five months before Awlaki was killed.

I said when Wyden made that clear that it showed there had not been adequate oversight of the killing. By his words–if not his deeds–Holder effectively made the same argument.

Will SCOTUS Invent a “Database-and-Mining” Exception to the Fourth Amendment?

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As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…).

I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.

I make a distinction between foreign intelligence surveillance and “database-and-mining” exceptions because the government is, in fact, conducting domestic surveillance under these programs and using it to collect intelligence on US persons (indeed, when asked about Secret PATRIOT earlier this month, James Clapper invoked “foreign or domestic” intelligence in the context of Secret PATRIOT). The government has managed to hide that fact thus far by blatantly misleading the FISA Court of Review in In re Directives and doing so (to a lesser degree) here.

In In re Directives, the government misled the court in two ways. First, according to Russ Feingold, the government didn’t reveal (and the company challenging the order didn’t have access to) information about how the targeting is used. The amendments he tried to pass–and which Mike McConnell and Michael Mukasey issued veto threats in response to–suggest some of the problems Feingold foresaw and the intelligence community refused to fix: reverse targeting, inclusion of US person data in larger data mining samples, and the retention and use of improperly collected information.

The government even more blatantly misled the FISCR with regards to what it did with US person data.

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 to not render those acquisitions unlawful.9 [citations omitted] 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.

9 The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice.

The notion that the government doesn’t have this US person data in a database is farcical at this point, as the graphic above showing the relative size of the NSA’s data center in UT–which I snipped from this larger ACLU graphic–makes clear (though the government’s unwillingness to be legally bound to segregate US person data made that clear, as well). Read more →

If Ron Wyden Hasn’t Seen Awlaki Memo, There Has Been Inadequate Oversight

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As MadDog noted and Ellen Nakashima reported, Ron Wyden is getting cranky that DOJ won’t even show him–a member of the Senate Intelligence Committee–the OLC memo authorizing the killing of Anwar al-Awlaki.

There’s one basic thing the letter makes clear (that Nakashima doesn’t emphasize). Ron Wyden, a member of the Senate Intelligence Committee, has still not seen the legal justification for killing Anwar al-Awlaki, four months after Awlaki was killed.

So, as you will remember, I called you in April 2011 and asked you to ensure that the secret Justice Department opinions that apparently outline the official interpretation of this lethal authority were provided to Congress.  The Justice Department provided me with some relevant information in May 2011, and I mistakenly believed that this meant that you had agreed to my request.  Nine months later, however, the Justice Department still has not fully complied with my original request, and it is increasingly clear that it has no intention of doing so.

Simply put, this situation is unacceptable.  For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens (subject to publicly unspecified limitations) while at the same time refusing to provide Congress with any and all legal opinions that delineate the executive branch’s understanding of this authority represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration.

So Wyden asked for the legal justification before Awlaki was killed, at a time when he could have exercised oversight over the killing, and got “some relevant information” but not the legal justification he asked for. And DOJ has not given him the legal justification since.

We know the Gang of Four had some kind of review over the killing, because all four made comments after his death in support. But there should be no justification for keeping such information at the Gang of Four level at this point–Awlaki is good and dead, the covert operation to kill him achieved its objective and is not all that covert now that the guy who oversaw the operation has talked about it on TV.

And yet these are the questions that Wyden still has about the killing:

Some of these questions include: ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?’, ‘is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?’, ‘can the President order intelligence agencies to kill an American who is inside the United States?’, and ‘what other limitations or boundaries apply to this authority?’.

If even the members of the Senate Intelligence Committee have not been permitted to review the Administration’s legal justification for the targeted killing of an American citizen, then the oversight over the op is even more inadequate than we knew. The Administration has really been operating on the principle that it can go off and kill American citizens without even having the elected representatives designated to oversee their actions fully review such killings.

Ron Wyden Suggests Secret PATRIOT GPS Tracking May Be Illegal Under Jones

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As I’ve suggested in my posts on US v Jones, the Justices seemed opposed to the kind of tracking we believe the government is doing under Section 215 of the PATRIOT Act. Yet of the three opinions ruling the warrantless use of GPS tracking in the case improper, only Sonia Sotomayor spoke broadly enough to make it clear that the Secret PATRIOT application is unconstitutional.

Ron Wyden (who, remember, wrote a column on Jones’ application to Secret PATRIOT) used yesterday’s Threat Assessment hearing to try to get James Clapper to commit to whether US v Jones makes Secret PATRIOT illegal. (2:25)

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment.

Given Clapper’s quick invocation of the law enforcement context, I suspect the Intelligence Community’s lawyers are planning to use the language in Samuel Alito’s concurring opinion addressing “extraordinary offenses”…

We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

…To claim that their intelligence application–“foreign or domestic”–would still permit the tracking of innocent citizens using their cell phones.

In any case, if Clapper is good on his word (though note, he said he’d give this interpretation to Wyden, not release it publicly), the government may finally tip its hand regarding its cell phone tracking of Americans.

The Non-Counterterrorist Drone Loophole: Did Clapper Admit We Targeted Iranian Scientists?

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One of the most interesting exchanges in yesterday’s Threat Assessment hearing occurred between Ron Wyden and James Clapper–with David Petraeus, whom Wyden calls out, observing silently (the exchange starts at 1:01).

Wyden: Let me wrap up with you Director Clapper on an issue that I’ve asked about before at this open hearing. General Petraeus knows about this, this is a question about the use of force and a speech that was given by Mr. Koh, Harold Koh of the State Department, a lawyer. Let me note at the beginning it’s a matter of public record that the intelligence community sometimes takes direct action against terrorists and this direct action sometimes involves the use of lethal force. And as you know Director [sic] Koh gave a speech outlining our policy with respect to various terrorist groups, talked about detention, talked about the use of unmanned drones and noted that under US law, the use of force against terrorist groups is permitted by Congressional authorization, while under international law it is permitted by America’s right to self defense. But in spite of having asked about this on a number of occasions, and General Petraeus, you know that I, too, share the Chair’s view with respect to your working with us here on this committee and your being forthright, I’ve not been able to get an answer to this specific question. And I would like to know whether that speech that Mr. Koh gave contained unstated exceptions for intelligence agencies?

Clapper: With respect to counterterrorism, it does not. So it applies to all components of the government involved in counterterrorism be it military or non-military.

Wyden: Are there other exceptions other than counterterrorist activities?

Clapper: I believe his speech dealt with counterterrorism.

Wyden: So you believe that his speech, the text of the speech–cause this would be important–applies to all agencies. It applies to the intelligence community, his entire speech, the overall thrust of the speech applies to all of the intelligence community.

Clapper: With respect to counterterrorism, yes.

Now, it seems clear that Wyden is referring to the portion of Koh’s speech that deals with drone strikes, which is reproduced in full below the line.

And my impression is that Wyden–who emphasizes targeting terrorists when he asks the question–was asking whether there was an exception to the principles of distinction and proportionality for the CIA when they used drones. Or, to put it more plainly, Wyden seemed to be asking whether the CIA could use drones to target civilians.

My guess is that Petraeus has refused to answer that question not to hide a CIA exception for the use of drones with civilian terrorists (say, with Anwar al-Awlaki) but rather to hide the CIA involvement in targeting of civilians in other contexts.

That’s the implication of Clapper’s response: “with the respect to counterterrorism, yes.” And Wyden’s expression as he delivers the question, “Are there other exceptions other than counterterrorist activities?” is worth watching.

There may be further confusion stemming from the language of Koh’s speech. While he was, in this section, specifically addressing “the Law of 9/11,” he does claim that his comments apply to “all of our operations involving the use of force.” Clapper’s caveat seems to belie that claim.

Koh’s language also addressed the use of force generally, not just those dealing with drones. We do use drones for missions outside of counterterrorism–including in drug operations, so Clapper’s caveat might suggest the CIA can target civilians in such context.

But if I had to guess, I’d say this had to deal with non-drone use of lethal force, possibly the assassinations of Iranian nuclear scientists. Was Clapper suggesting CIA targeted civilian nuclear scientists?

And while we may not have attached the bombs to Iranian civilian scientists’ cars (though our surrogates did), remember the suggestions that our drone surveillance of Iran was involved in those assassinations.

Read more →

Senate Passes Defense Authorization

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The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.

I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.

Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

SCOTUS and GPS Tracking: US v. Jones and Secret PATRIOT

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As I read the transcript of the SCOTUS hearing in the US v. Jones yesterday, I was most interested in what the comments suggest about the government’s secret use of the PATRIOT Act to–presumably–use phone geolocation to track people. (Here’s Dahlia Lithwick, Orrin Kerr, Julian Sanchez, Lyle Denniston, and Kashmir Hill on the hearing itself.)

Mind you, the facts in Jones are totally different from what we think may be happening with Secret PATRIOT (I’ll borrow Julian Sanchez’ speculation on what Secret PATRIOT does for this post). In Jones, a suspected drug dealer had a GPS device placed on his car after the 10-day warrant authorizing the cops to do so had already expired. As such, Jones tests generally whether the government needs an active warrant to track a suspect using GPS.

Whereas with Secret PATRIOT, the government is probably using Section 215 to collect the geolocation data from a large group of people–most of them totally innocent–to learn whom suspected terrorists are hanging around with. Not only does Secret PATRIOT probably use the geolocation of people not suspected of any crime (Section 215 requires only that the data be relevant to an investigation into terrorists, not that the people whose records they collect have any tie to a suspected terrorist), but it collects that information using a device–a cell phone–that people consensually choose to carry. Moreover, whereas in Jones, the government was tracking his car in “public” (though Justice Sotomayor challenges that to a degree), Secret PATRIOT probably tracks the location of people in private space, as well. Another significant difference is that, in Jones, the government is doing the tracking themselves; in Secret PATRIOT they probably get tracking data under the guise of business records from cell phone companies.

Nevertheless, the concerns expressed by the Justices seem to be directly relevant to Secret PATRIOT. After all, Chief Justice Roberts almost immediately highlighted that the government’s argument–that the use of GPS to track cars on public streets was not a search and therefore it did not need probable cause to use it on anyone–meant that the government could also use GPS trackers on the Justices themselves.

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?

MR. DREEBEN: The justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.

(Laughter.)

MR. DREEBEN: Under our theory and under this Court’s cases, the justices of this Court when driving on public roadways have no greater expectation

CHIEF JUSTICE ROBERTS: So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

[snip]

CHIEF JUSTICE ROBERTS: Well, then you’re -you’re moving away from your argument. Your argument is, it doesn’t depend how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is you can do it, period. You don’t have to give any reason. It doesn’t have to be limited in any way, right?

MR. DREEBEN: That is correct, Mr. Chief Justice.

Read more →

Warrants for Innocent People Are Not Like Warrants for Suspects

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As Charlie Savage reports, Ron Wyden and Mark Udall have written Eric Holder scolding him for mischaracterizations DOJ has made about how the government is using the Patriot Act, in part to collect information on people’s location.

They cite two examples of such mischaracterizations: First, when a number of Justice Department officials claimed,

that the government’s authority to obtain business records or other “tangible things” under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena.

[snip]

As you know, Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are “analogous” they provide the public with a false understanding of how surveillance is interpreted in practice.

What they don’t say, but presumably mean to suggest, is that the claim Section 215 is like a grand jury subpoena is false, since the latter are routinely used to collect the “tangible things” (and even ephemeral things like cell phone tracking data) of completely innocent people.

Section 215 is not like a grand jury subpoena because you don’t even have to be connected to a crime (or suspected terrorist or spy) to be caught in the surveillance it has been used to authorize.

Wyden and Udall’s second complaint pertains to word games played by DOJ spokesperson Dean Boyd in speaking to Al Jazeera English; I’ve bolded the passage they object to.

US Justice Department public affairs officer Dean Boyd dismissed the senators’ allegations. “It’s quite unfortunate that your facts are so incorrect,” Boyd told Al Jazeera English when asked about Wyden and Udall’s comments.

Boyd highlighted one provision of the Patriot Act in his response, Section 215. “Contrary to various claims in recent months and years, Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department,” he said.

Boyd’s dodge, it appears, is that DOJ hasn’t gotten an OLC opinion; they’re relying solely on FISC opinions.

This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions–and the legal interpretations they contain–continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept from the American public, the government is effectively relying on secret law.

There are two problems that Wyden and Udall’s letter present, which they don’t lay out themselves.

First, after noting that warrants for people who are not suspects are not like warrants for suspects, the Senators observe that DOJ officials have made misleading claims to the contrary to Congress. They seem to be reminding Holder that it is a crime to lie to Congress.

Or, at least, it used to be. Given DOJ’s treatment of Scott Bloch, who as a DOJ employee lied to Congress, it’s clear that DOJ is unlikely to allow its own employees to go to jail for lying to Congress. Perhaps Senators Wyden and Udall would like to make a stink about that? Otherwise, their implicit threat of legal consequences for these lies is completely impotent.

The other problem–one they probably can’t lay out in an unclassified letter–is the precedent of the In re Sealed Case decision by FISCR. As I’ve laid out, Cheney’s illegal wiretap program appears to have been in tension if not outright conflict with the FISCR for a year and a half, until Jack Goldsmith purportedly resolved that conflict with specious (though still classified) arguments. Given that DOJ has apparently not laid out what they’re actually doing with Section 215 and geolocation in an OLC memo, it increases the likelihood that the language of the FISC opinions may not precisely apply to the behavior of DOJ (as an OLC opinion might). Furthermore, in that previous case, DOJ sent a bunch of lawyers who weren’t even briefed into relevant activities to argue before the court.

There’s no affirmative evidence DOJ is doing such things in this case. But the In re Sealed Case precedent, the unexplained chose not to get OLC to approve this activity, as well as the Obama Administration’s precedent of overriding OLC when its lawyers counseled against continued Libyan bombing all raise real questions about the legal process by which the Administration came to claim this stuff has some kind of legal sanction.

In other words, while the bigger issue in this letter seems to be the government’s continued pretense that warrants for surveiling innocent Americans are just like warrants for investigating suspects, I’m beginning to suspect the bigger story is the unusual means by which the Administration got “authority” to spy on innocent Americans.

Tom Coburn Suggests Problems with Use of PATRIOT Act Section 215 Will Be Big Court Battle

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I’m watching the SJC’s 51 minutes of almost entirely pathetic questioning of Robert Mueller to remain Director of FBI for two more years (the only real challenge came from Al Franken on civil liberties issues). And while by far the most telling aspect of the questioning came in Mueller’s repeated assertion that aspirational internet terrorists are the biggest threat we face, Tom Coburn asked a truly fascinating question.

He asked Mueller if he believed his two year extension was constitutional. He then used that as a platform to ask (my transcription),

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

In other words, he suggested that the Section 215 issues that Ron Wyden and Mark Udall have raised may quickly turn into a significant, and drawn-out, constitutional litigation.

Remember, Coburn was on the Senate Intelligence Committee last term. While he’s no longer on the Committee (and therefore was not in the briefing on February 2, 2011 that got Wyden and Udall in such a tizzy), he would have been briefed on the FBI’s use of Section 215 to develop databases of Americans who buy hydrogen peroxide and , presumably, geolocation.

FWIW, Mueller didn’t really answer the question (at least not that I noticed), though in response to Al Franken he claimed the FBI has not abused any of the PATRIOT authorities.

Well, it sounds like Coburn, at least, believes a Court (and presumably, ultimately SCOTUS) may soon have an opportunity to determine whether or not he’s right.

Update: I recall now that among the things that Wyden has asked for at times–in addition to the OLC opinions backing this use of Section 215–are FISC opinions, presumably on Section 215 applications. That suggests this may already be wending its way towards SCOTUS, only via the secret FISA courts.

Update: I may have totally misunderstood. Alternately, there may be this much sensitivity on 215 that Coburn is worried. John Gerstein includes this in an article on Coburn’s concerns about the constitutionality of a Mueller extension generally.

“I have concerns that we’re going to get mired in court battles over this that actually make you ineffective in carrying out your job,” Coburn told Mueller earlier in the committee hearing. The Oklahoma republican noted that Mueller or one of his deputies is required to sign certain types of surveillance and search orders and that such approvals could be challenged if Mueller’s appointment was in question.

But why would Coburn be primarily worried about Mueller’s 215 applications–and not FISA applications more generally?

Update: Ok, I’ve watched the piece again. Coburn was asking about potential constitutionality of Mueller’s extension raising legal issues for Section 215 orders, which have to certified by Mueller or one of two of his subordinates. That may have been just a hypothetical. But it still strikes me as an odd hypothetical.