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In 2010, DOJ Was Stalling Gang of Four Member Silvestre Reyes Over (Probably) Common Commercial Services Memo

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As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its FOIA lawsuit.

According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about a memo — which is probably the same one — even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about a May 30, 2003 memo. On October 5, Ron Weich wrote Reyes,

We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.

In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”

That seems like a problem to me.

It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.

Update: On reflection, I may have overstated how sure we can be that this May 30 opinion is the same opinion. I’ve adjusted the post accordingly.

 

NSA Lost the House Judiciary Committee During the 2011 PATRIOT Act Reauthorization

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I want to put the two documents pertaining to the NSA’s geolocation effort released last week into context. Because they show yet another instance where the Intelligence Community did not inform Congress about what they were doing.

The two documents make it clear NSA started considering collecting geolocation in February 2010, almost certainly before the February 26-27 one year reauthorization of PATRIOT Act that month. The December 2009 letter that provided notice to Congress — which wasn’t shared with the rest of Congress until February 23-24 — provided no notice NSA was going to start testing on geolocation. So the NSA missed one opportunity to brief Congress that it was again expanding its interpretation of Section 215.

Then on February 2, 2011, Ronald Weich provided the Intelligence Chairs a second letter designed to inform Congress about the dragnet. Again, this letter also appears to make no mention of the geolocation testing. So NSA missed a second opportunity to brief Congress. Moreover, this is the letter that Mike Rogers did not pass onto members of the House.

It is unclear when NSA briefed the Intelligence Committees about the program, but a Senate Intelligence Committee staffer posed questions to NSA on March 7, but even those basic questions about legal support for the testing did not get answered until April 1.

The 4-year extension of the PATRIOT Act passed on May 26, 2011.

It took another three months before the House Judiciary Committee would get notice of a geolocation program already in action.

In other words, this was a clear instance where NSA was expanding the dragnet during the entire 15 month period of PATRIOT Act reauthorization. But according to the public record, it didn’t even inform the House Judiciary Committee — which the I Con insists always gets adequate briefing — until months after 4-year reauthorization of the PATRIOT Act.

NSA defenders are trying to use HJC member Jim Sensenbrenner’s earlier prevarications to suggest he doesn’t have reason to claim the NSA keeps secrets from Congress. Too bad the record — as it always tends to, once it becomes public — proves them wrong.  Read more →

DOJ Did Not Fulfill Legally Required Disclosure on Section 215 to Congress Until After PATRIOT Reauthorization

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In the Guardian’s superb summary of the importance of the NSA leaks, Zoe Lofgren challenges the claims that Congress has received all the documents NSA claims it has gotten.

I do serve on the Judiciary Committee and various statements have been made that the Judiciary Committee members were told about all of this and those statements are untrue, not the facts, we have not been provided the documents that the Agency said that we were.

In a Privacy and Civil Liberties Oversight Board today, NSA General Counsel Raj De and ODNI General Counsel Robert Litt both repeated such claims (these are from my notes on twitter; I’ll check my transcription later). De said that Section 215 “had all indicia of official legitimacy” which in part came because it was “twice reauthorized by Congress with full information from exec.” And Litt said they are “by statute required to provide copies [of FISC documents] to both houses. They got materials relating to this [Section 215] program.”

Obviously, we know De is wrong, and he must know it, because a sufficiently large block of Congressmen never had the opportunity to read the Executive’s official notice to make the difference in the 2011 reauthorization. His statement is a clear lie.

But I’m just as interested in Litt’s claim (which would rely on notice to the Judiciary and Intelligence Committees).

This most recent I Con dump provides some evidence that illuminates Lofgen’s implicit dispute of Litt’s claims. Remember this paragraph, which is one of the most specific claims about what notice the Administration gave to Congress about using Section 215 to authorize the phone dragnet.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this [Section 215] program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

As I noted in this post, the specific language (in bold) regarding the first, May 2006, authorization of the phone dragnet at least suggested, in this context, there wasn’t an opinion at all, as did a lot more evidence. But recent reporting strongly suggests there was (see this post where I argue this is likely the phone dragnet opinion).

Government lawyers have told the ACLU that they are withholding at least two significant FISC opinions — one from 2008 and one from 2010 — relating to the Patriot Act’s Section 215, or “business records” provision.

This would seem to indicate that Congress was not provided the original 2006 opinion (as distinct from the application and primary order) “by December 2008.”

With that mind, consider this document released by the I Con, an August 16, 2010 memo from Office of Legislative Affairs Assistant Attorney General Ronald Weich to the Chairs of the Judiciary and Intelligence Committees.

Pursuant to section 1871 of United States Code Title 50, we are providing the Committees with copies of the remaining decisions, orders, or opinions issued by the Foreign Intelligence Surveillance Court, and pleadings, applications, or memoranda of law associated therewith, that contain significant constructions or interpretations of any provision of FISA during the five-year period ending July 10, 2008. See 50 U.S.C. § 1871(c)(2). We have provided similar materials for the same time period. 

Now remember, while ODNI made a big show of releasing these documents, they released them as part of the ACLU’s FOIA for documents on Section 215 and all the documents released pertain to Section 215. I Con describes the memo as referring to “several documents to the Congressional Intelligence and Judiciary Committees relating to NSA collection of bulk telephony metadata under Section 501 of the FISA, as amended by Section 215 of the USA PATRIOT Act,” confirming they pertain to Section 215.

The Patriot Act was reauthorized in February 2010.

At a minimum, this suggests the White Paper provided in August may have been highly misleading. When it said “Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees,” it did not mean that by December 2008, the four oversight committees had all the significant opinions in hand. Even assuming the Weich brief was correct, which Lofgren’s comment suggests it might not be, they didn’t get around to handing over opinions pertaining to Section 215 going back to July 10, 2003 until August 2010. That period — July 10, 2003 to July 10, 2008 — would cover both the July 2004 Colleen Kollar-Kotelly opinion authorizing using the Pen Register/Trap and Trace to collect Internet metadata, and the May 2006 opinion authorizing the phone dragnet. While we don’t know that the Kollar-Kotelly opinion was withheld until 2010, the language of the White Paper (which suggests the opinion itself was not provided) strongly suggests the May 2006 one was.

The law requiring such disclosure, 50 U.S.C. § 1871(c)(2), was part of the FISA Amendments Act, so had been in place for a full year by the time the PATRIOT Act reauthorization got started, yet DOJ didn’t get around to complying with it until 2 years after the law passed. And the law specifically requires disclosure of both the PR/T&T and the Section 215 authorities.

The possibility that DOJ did not turn over the original phone dragnet opinion is utterly damning given David Kris’ suggestion that the initial approval of the phone dragnet — the 2006 opinion — may have been erroneous.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.

[snip]

The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct.

David Kris at least entertains the possibility that the original May 2006 opinion was “erroneous,” but points to Congress’ reauthorization of the PATRIOT Act to claim it had incorporated FISC’s interpretation of the law.

But now we know that DOJ did not provide all of FISC’s significant opinions pertaining to Section 215 to the key oversight committees until August 16, 2010, over two years after they were obligated to do so — and the plain language of the White Paper strongly suggests that DOJ did not provide the key May 2006 opinion to the oversight committees.

This doesn’t yet prove that DOJ withheld the May 2006 opinion that Kris suggests might be “erroneous” until after Congress reauthorized the PATRIOT Act. But it strongly suggests that is the case.

Update: PATRIOT Act Reauthorization line moved per Anonster’s suggestion.

Update: Added the language I Con used to describe the documents handed over in August 2010.

DOJ Admits It Has Been “Lying” for 24 Years; Journalists Applaud

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I’m sort of mystified by yesterday’s reporting on the DOJ letter to Chuck Grassley and Pat Leahy regarding FOIA. Basically, the letter announced that DOJ has been “lying” on FOIA responses for 24 years, and that DOJ will only change its approach if it finds a good alternative. And yet report after report said DOJ had decided to drop their “new” approach to FOIA (TPM is the sole exception I saw, though the article’s title appears to reflect an earlier mistaken version).

As a reminder, the rule in question instructed FOIA respondents to respond to a FOIA request on ongoing investigations, informants, and classified foreign intelligence information as if the information didn’t exist.

(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.

The letter everyone is celebrating says this about DOJ’s FOIA practice over the last 24 years.

Since 1987, the Department has handled records excluded under [FOIA’s Section 552(c)] according to guidance issued by Attorney General Meese. The Meese Guidelines provided, among other things, that where the only records responsive to a request were excluded from FOIA by statute, “a requester can properly be advised in such a situation that ‘there exist no records responsive to your FOIA request,'” and that agencies must ensure that its FOIA responses to requests that involve exclusions and those that do not involve exclusions “are consistent throughout, so that no telling inferences can be drawn by requesters.” The logic is simple: When a citizen makes a request pursuant to FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA: where the only records that exist are not subject to the FOIA, the statement that “there exist no records responsive to your FOIA request is wholly accurate. These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.[my emphasis]

This paragraph makes it clear that the practice “proposed” in the “new” rule is actually the practice DOJ has followed for 24 years.

Here’s the language from the Meese Guidelines, which makes it clear DOJ has not been using Glomar’s “We can neither confirm nor deny” language for these exclusions–as some of the reports on this yesterday claimed–but has instead been denying any records exist.

In addition to expanding the protective scope of the FOIA’s principal law enforcement exemptions, the FOIA Reform Act creates an entirely new mechanism for protecting certain especially sensitive law enforcement matters, under new subsection (c) of the FOIA. These three new special protection provisions, referred to as record “exclusions,” now expressly authorize federal law enforcement agencies, for certain especially sensitive records under certain specified circumstances, to “treat the records as not subject to the requirements of [the FOIA].” 5 U.S.C. � 552(c)(1), (c)(2), (c)(3), as enacted by Pub. L. No. 99-570, � 1802 (1986). In other words, an agency applying an exclusion in response to a FOIA request will respond to the request as if the excluded records did not exist.

[snip]

To be sure, the protection afforded through “Glomarization” can adequately shield sensitive abstract facts in certain categorically defined situations. However, the “Glomarization” principle, by its nature, operates necessarily on the basis of (and openly connected with) specified FOIA exemptions, and it is limited in such a way as to mask only an abstract fact related to a defined record category. See FOIA Update, Spring 1983, at 5; see, e.g., FOIA Update, Spring 1986, at 2. Thus, mere “Glomarization” simply is inadequate to guard against the harm caused by the very invocation of a particular exemption, nor is it capable of being applied realistically where the “category” of threatening requests can be as broad as, in effect, “all FOIA requests seeking records on named persons or entities.” It is precisely because “Glomarization” inadequately protects against the particular harms in question that the more delicate exclusion mechanism, which affords a higher level of protection, sometimes must be employed.(47)

By the same token, the utilization of the exclusion mechanism requires extremely careful attention on the part of agency personnel, lest it be undermined, even indirectly, by the form or substance of an agency’s actions. Agencies should pay particular attention to the phrasing of their FOIA-response communications in light of the new exclusions. Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

The DOJ letter, combined with the Meese Guidelines, makes it clear: DOJ has been responding for FOIAs throughout that period with the misleading language. There is nothing “new” about the practice whatsoever.

DOJ’s prior use of this practice should be clear from the history of this rule–which was basically rushed through as Judge Cormac Carney’s ruling made it clear that the FBI had used this practice in a response to CAIR. Contrary to DOJ’s claim that it tried to push through this rule out of some concern for transparency, they only drafted it once it became clear their long-standing practice would be exposed in the Carney ruling.

And as I noted yesterday, while DOJ has dropped the language formalizing this from the rule…

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures, and we will not include that provision when the Department issues final regulations.

…it has not promised to drop the practice. On the contrary, it says it will only change the practice–the practice it has used for the last 24 years–if it can find something that works as well.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

And why should it drop the practice? It doesn’t need a rule to authorize it, it already has authority in the FOIA amendment passed in 1986, which the 9th Circuit referenced in its opinion on the Carney ruling just this spring with no complaint.

In addition, Congress added section 552(c) to the FOIA in 1986 to allow an agency to “treat the records as not subject to the [FOIA] requirements” in three specific categories involving: (1) ongoing criminal investigations; (2) informant identities; and (3) classified foreign intelligence or international terrorism information. 5 U.S.C. § 552(c) (1)-(c)(3)4; see Benavides v. Drug Enforcement Admin., 968 F.2d 1243, 1246-47 (D.C. Cir. 1992) (discussing the legislative history of the “three exclusions of § 552(c)”). Only subsection (c)(3) deals with classified information, while subsections (c)(1) and (c)(2) apply to law enforcement records. Therefore, plaintiffs’ contention that only classified information can be withheld under the FOIA is belied by the statute.

The 9th Circuit was not asked to review the constitutionality of this practice. But it certainly showed no discomfort with it. If the law endorses this practice and Appeals Courts have found no problem with it, what are the chances, really, that DOJ will change it substantially?

All yesterday’s letter did was announce that DOJ will once again not explicitly describe how it is applying exclusions–it will return to the practice it has followed for 24 years. Sure, it may find a new way to handle exclusions. But all we have now is a promise that it is considering doing so.

DOJ Lies about Its FOIA Lies

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Patrick Leahy just released a letter DOJ sent him and Chuck Grassley regarding DOJ’s effort to formalize their practice of lying in response to some FOIA requests. Now, Leahy claims the government has withdrawn its proposed rule–which I think overstates what DOJ has done.

I commend Attorney General Holder and the Obama administration for promptly withdrawing the Department’s proposed rule on the treatment of requests for sensitive law enforcement records under the Freedom of Information Act.  For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret.  The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government. [my emphasis]

While the letter does say,

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures [I think this refers to DOJ’s promise of transparency, but it’s not entirely clear], and we will not include that provision when the Department issues final regulations.

It also speaks conditionally of making changes to the practice itself.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

In other words, DOJ has only committed to taking the language about exclusions out of the rule, not to changing the practice on exclusions it has followed for 20 years. It’s only going to make a change in the practice if it can find some new practice that works as well.

And there’s reason to doubt DOJ’s overall good faith with this letter. That’s because they claim their approach to exclusions “never involved ‘lying’.”

While the approach has never involved “lying,” as some have suggested, the Department believes that past practice could be made more transparent.

That’s an out and out “lie” (I’m guessing that DOJ thinks those scare quotes make “lie” mean something other than what we think it means). As Judge Cormac Carney laid out in his ruling on this practice, the government “lied” to him about what FBI documents existed on CAIR.

The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

And the letter’s claim that this process “never” involved “lying” is all the more suspect given that DOJ tells a “lie” in this letter. It says,

These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.

But Meese’s memo envisioned judicial review.

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. [my emphasis]

DOJ, by “lying” to Carney (and probably a slew of other judges over the years) evaded any judicial review of its use of exclusions. DOJ was actually going beyond what even corrupt old Ed Meese laid out!

And then, if there were any doubt of DOJ’s bad faith here, there’s this:

As you know, the initial comment period on these regulations closed earlier this year, with no public comment on the provisions in question. As a result, however, of this Administration’s commitment to openness, the Department reopened the comment period on these regulations precisely so that it could receive additional input.

The reason they got no comments in the first period, of course, is that they snuck through the rule just before Carney would make his ruling public.

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

That is, they only opened the second comment period because they got caught pulling a fast one, trying to push through the rule before the risks behind the rule became apparent.

Which is probably what they’re doing here.

Of course they have to change the rule now. That’s because every denial must now be assumed to be a “lie” which can only be exposed by litigating the issue. The rule is going to lead to a lot more FOIA lawsuits.

So in addition to assuming that they’re “lying” in response to FOIA requests, it’s probably safe to assume they’re misleading with their suggestion that because they’re going to take this practice out of their rule, they’re ending the practice.