Posts

I Rarely Say I Told You So, Section 704 I Told You So Edition

/8 Comments/in , /by

Since 2014, I have been trying to alert anyone who would listen about Section 704.

That’s a part of FISA Title VII — the part of FISA that will be reauthorized this year. When Congress passed FISA Amendments Act in 2008, they promised they’d protect US persons overseas by requiring an order to surveil them. Almost always, the section that accomplished that was referred to Section 703, which is basically PRISM for Americans overseas.

Except I discovered when I (briefly) worked at the Intercept that NSA never uses 703. Ever. Which meant that what they use to surveil Americans overseas is somewhat looser Section 704 (or, for Americans against whom there is a traditional domestic FISA order, 705b). Except no one — and I mean literally no one, not in the NGO community nor on the Hill — understood how Section 704 was used.

Exactly a year ago, I laid all this out in a post and suggested that, as part of the Section 702 reauthorization this year, Congress should finally figure out how 704 works and whether there are any particular concerns about it.

It turns out, four months before I wrote that, NSA’s Inspector General had finalized a report showing that in the seven and a half years since Section 704 was purportedly protecting Americans overseas, it wasn’t. The report is heavily redacted, but what isn’t redacted showed that the NSA had never set up a means to identify all 704/705b queries, and so couldn’t reliably oversee whether analysts were following the rules. The report showed that Signals Intelligence Compliance and Oversight only started helping DOJ and ODNI do their compliance reviews of 704/705b in October 2014, by providing the queries they could identify to the reviewers. But not all queries can be audited, because not all the feeds in question can be sent to NSA’s auditing and logging system.

The review itself — conducted from March to August of 2015 on data from the first quarter of that year — showed a not insignificant amount of querying non-compliance.

The 704 compliance problems are a part of the problem with NSA’s decision to shut down upstream surveillance (because 704 collection authorization is one of the things that automatically gets a US person approved for upstream searches]. Though, in her most biting comment in an otherwise pathetic opinion, Chief FISC judge Rosemary Collyer note the failure to tell her about this when 702 certificates were submitted in September or in an October 4 hearing showed a lack of candor.

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

A review that post-dated the IG Report revealed the problem was even bigger than that. In the compliance section of the report, Collyer noted that 85% of the 704/705b queries conducting using one particular tool (which was rolled out in 2012) were non-compliant.

NSA examined all queries using identifiers for “U.S. persons targeted pursuant to Sections 704 and 705(b) of FISA using the tool [redacted] in [redacted] . . . from November 1, 2015 to May 1, 2016.” Id. at 2-3 (footnote omitted). Based on that examination, “NSA estimates that approximately eighty-five percent of those queries, representing [redacted] queries conducted by approximately [redacted] targeted offices, were not compliant with the applicable minimization procedures.” Id. at 3. Many of these non-compliant queries involved use of the same identifiers over different date ranges. Id. Even so, a non-compliance rate of 85% raises substantial questions about the propriety of using of [redacted] to query FISA data. While the government reports that it is unable to provide a reliable estimate of the number of non-compliant queries since 2012, id., there is no apparent reason to believe the November 2015-April 2016 period coincided with an unusually high error rate.

And NSA was unable to chase down the reporting based off this non-compliant querying.

The government reports that NSA “is unable to identify any reporting or other disseminations that may have been based on information returned by [these] non-compliant queries” because “NSA’s disseminations are sourced to specific objects,” not to the queries that may have presented those objects to the analyst. Id. at 6. Moreover, [redacted] query results are generally retained for just [redacted].

All of which is to say that the authority that the government has been pointing to for years to show how great Title VII is is really a dumpster fire of compliance problems.

And still, we know very little about how this authority is used.

The number of Americans affected is not huge — roughly 80 people approved under 704 plus anyone approved for domestic FISA order that goes overseas (though that would almost certainly include Carter Page). Still, if this is supposed to be the big protection Americans overseas receive, it hasn’t been providing much protection.

FBI Rewrote the Backdoor Search Query Requirement

/2 Comments/in /by

In her opinion approving the April 26 certifications (which may be one of the most unimpressive FISC opinions I’ve read), Rosemary Collyer borrowed heavily on the 2015 authorization in finding this year’s constitutional. As such she refers to Thomas Hogan’s imposition of a reporting requirement for any back door searches “in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information.”

She then describes the one incident reported this year: basically an Agent seeing an email of someone referring to violence toward children. The Agent searched on the person who allegedly committed the violence and the names of the children, only to find the same email again. The Agent reported the suspected child abuse to the local child protective services.

But, she reveals, no one reported this until DOJ’s National Security Division asked about such reporting during their review.

The Court notes, however, that the FBI did not identify those queries as responsive to the Court’s reporting requirement until NSD asked whether any such queries had been made in the course of gathering information about the Section I.F dissemination. Notice at 2. The Court is carrying forward this reporting requirement and expects the government to take further steps to ensure compliance with it.

There are several reasons this is troublesome.

First, the incident would have gone unreported unless someone felt obliged to be honest when asked specifically about it (ODNI/DOJ don’t do reviews in all field offices, so not everyone will get asked).

Moreover, the incident got reported not because it was “receive[d] and reviewe[d],” but because it was disseminated. So there may be a great deal of back door searches that get received and reviewed but because they don’t constitute evidence of a crime, aren’t disseminated, with the consequent paper trail.

Finally, this means certain kinds of criminal searches won’t be reported: those where FBI gets a criminal tip, then looks on their 702 data, only to find something they might use to coerce informants. Information used to coerce informants would suddenly become foreign intelligence information, so no longer subject to the reporting requirement.

To meet the actual requirement from FISC — rather than the one they’re willing to comply with — FBI needs to dramatically restructure the compliance to this reporting requirement, to measure when a search is done for criminal purposes, and then — as soon as an agent conducts that review — gets noticed to the FISC.

Of course, that would require precisely the kind of tracking the FBI has refused to do. Their arbitrary rewriting of this requirement demonstrates why.

Update: In application for certificates submitted on September 26, 2016, DOJ said this about its back door searches:

In a latter filed on December 4, 2015, the government noted that there is no automated way for the FBI to track whether a query is run solely for a foreign intelligence purpose, to extract evidence of a crime, or both. However, the December 4, 2015 letter detailed the processes the FBI put in place to attempt to identify those queries that are run in FBI systems containing raw 702-acquired information after December 4, 2015, that are designed to extract evidence of a crime. In addition, the December 4, 2015 letter explained that FBI had issued guidance to its personnel about this reporting requirement and the process to enable FBI to centrally track such scenarios and report any such queries to NSD that would fall under the reporting requirement described above. Additionally, NSD conducts minimization reviews in multiple FBI field offices each year. As part of these minimization reviews, NSD and FBI National Security Law Branch have emphasized the above requirements and processes during field office training. Further, during the minimization reviews, NSD audits a sample of queries performed by FBI personnel in the databases storing raw FISA-acquired information, including raw section 702-acquired information. Since December 2015, NSD has reviewed these queries to determine if any such queries were conducted solely for the purpose of retaining evidence of a crime. If such a query was conducted, NSD would seek additional information from the relevant FBI personnel as to whether FBI personnel received and reviewed section 702-acquired information of or concerning a U.S. person in response to such a query. Since the above processes were put in place in December 2015, FBI and NSD have not identified any instance in which FBI personnel have received and reviewed section 702-acquired information of or concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information.

There are several key details here.

First, DOJ reported no queries on September 26, which means the query must have happened after that (though it’s not clear whether Collyer’s opinion would reflect the most recent reporting).

It’s also clear DOJ will only find these in spot checks. As DOJ makes clear here (and as was misrepresented at a recent hearing), NSD and ODNI don’t actually visit every FBI office (though I’m sure they hit SDNY, EDNY, DC, EDVA, MD, and NDCA routinely, which are the biggest national security offices). That means there’s not going to be a chance to find many possible queries.

There’s also some fuzzy language here. I’m particularly intrigued by this double usage of “FBI personnel,” as if someone from outside of FBI does review this, perhaps on an analytical contract.

If such a query was conducted, NSD would seek additional information from the relevant FBI personnel as to whether FBI personnel received and reviewed section 702-acquired information of or concerning a U.S. person in response to such a query.

Or perhaps FBI calls up NSA and asks them to access the same content?

Finally, it’s clear the definition FBI is using, with respect to “foreign intelligence, crime, or both” permits generalized queries (in part to see if there’s intelligence to use to coerce someone to be an informant) that could serve either purpose. Such an approach cannot measure how much more often someone more likely to talk with a 702 target — like Muslims or Chinese-Americans — get pursued for crimes after a longer assessment decides against using the person as an informant.

Which is another way of saying that this metric is not measuring what Judge Hogan wanted it to measure.

Rosemary Collyer’s Worst FISA Decision

/4 Comments/in /by

In addition to adding former National Security Division head David Kris as an amicus (I’ll have more to say on this) the FISA Court announced this week that Rosemary Collyer will become presiding judge — to serve for four years — on May 19.

Collyer was the obvious choice, being the next-in-line judge from DC. But I fear she will be a crummy presiding judge, making the FISC worse than it already is.

Collyer has a history of rulings, sometimes legally dubious, backing secrecy and executive power, some of which include,

2011: Protecting redactions in the Torture OPR Report

2014: Ruling the mosaic theory did not yet make the phone dragnet illegal (in this case she chose to release her opinion)

2014: Erroneously freelance researching the Awlaki execution to justify throwing out his family’s wrongful death suit

2015: Serially helping the Administration hide drone details, even after remand from the DC Circuit

I actually think her mosaic theory opinion from 2014 is one of her (and FISC’s) less bad opinions of this ilk.

The FISC opinion I consider her most troubling, though, is not a FISC decision at all, but rather a ruling from last year in an EFF FOIA. Either Collyer let the government hide something that didn’t need hidden, or it has exploited EFF’s confusion to hide the fact that the Internet dragnet and the Upstream content programs are conducted by the same technical means, a fact that would likely greatly help EFF’s effort to show all Americans were unlawfully spied on in its Jewell suit.

Back in August 2013, EFF’s Nate Cardozo FOIAed information on the redacted opinion referred to in this footnote from John Bates’ October 3, 2011 opinion ruling that some of NSA’s upstream collected was illegal.

Screen Shot 2015-10-31 at 6.52.30 PM

Here’s how Cardozo described his FOIA request (these documents are all attached as appendices to this declaration).

Accordingly, EFF hereby requests the following records:

1. The “separate order” or orders, as described in footnote 15 of the October 3 Opinion quoted above, in which the Foreign Intelligence Surveillance Court “address[ed] Section 1809(a) and related issues”; and,

2. The case, order, or opinion whose citation was redacted in footnote 15 of the October 3 Opinion and described as “concluding that Section 1809(a)(2) precluded the Court from approving the government’s proposed use of, among other things, certain data acquired by NSA without statutory authority through its ‘upstream collection.’”

Request 2 was the only thing at issue in Collyer’s ruling. By my read, it would ask for the entire opinion the citation to which was redacted, or at least identification of the case.

EFF, of course, is particularly interested in upstream collection because it’s at the core of their many years long lawsuit in Jewell. To get an opinion that ruled upstream collection constituted unlawful collection sure would help in EFF’s lawsuit.

In her opinion, Collyer made a point of defining “upstream” surveillance by linking to the 2012 John Bates opinion resolving the 2011 upstream issues (as well as to Wikipedia!), rather than to the footnote he used to describe it in his October 3, 2011 opinion.

The opinion in question, referred to here as the Section 1809 Opinion, held that 50 U.S.C. § 1809(a)(2) precluded the FISC from approving the Government’s proposed use of certain data acquired by the National Security Agency (NSA) without statutory authority through “Upstream” collection. 3

3 “Upstream” collection refers to the acquisition of Internet communications as they transit the “internet backbone,” i.e., principal data routes via internet cables and switches of U.S. internet service providers. See [Caption Redacted], 2012 WL 9189263, *1 (FISC Aug. 24, 2012); see also https://en.wikipedia.org/wiki/Upstream_collection (last visited Oct. 19, 2015); https://en.wikipedia.org/wiki/Internet_backbone (last visited Oct. 19, 2015).

As it was, Collyer paraphrased where upstream surveillance comes from as ISPs rather than telecoms, which was redacted in the opinion she cited. But by citing that and not Bates’ 2011 opinion, she excluded an entirely redacted sentence from the footnote Bates used to explain it, which in context may have described a little more about the underlying opinion.

Screen Shot 2016-04-28 at 11.38.32 AM

Having thus laid out the case, Collyer deferred to NSA declarant David Sherman’s judgment — without conducting a review of the document — that releasing the document would reveal details about the implementation of upstream surveillance.

Specifically, the release of the redacted information would disclose sensitive operational details associated with NSA’s “Upstream” collection capability. While certain information regarding NSA’s “Upstream” collection capability has been declassified and publicly disclosed, certain other information regarding the capability remains currently and properly classified. The redacted information would reveal specific details regarding the application and implementation of the “Upstream” collection capability that have not been publicly disclosed. Revealing the specific means and methodology by which certain types of SIGINT collections are accomplished could allow adversaries to develop countermeasures to frustrate NSA’s collection of information crucial to national security. Disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national security.

[snip]

With respect to the FISC opinion withheld in full, it is my judgment that any information in the [Section 1809 Opinion] is classified in the context of this case because it can reasonably be expected to reveal classified national security information concerning particular intelligence methods, given the nature of the document and the information that has already been released. . . . In these circumstances, the disclosure of even seemingly mundane portions of this FISC opinion would reveal particular instances in which the “Upstream” collection program was used and could reasonably be expected to encourage sophisticated adversaries to adopt countermeasures that may deprive the United States of critical intelligence. [my emphasis]

Collyer found NSA had properly withheld the document as classified information the release of which would cause “grave damage to national security.”

Read more →

Today Obama Will Get His Fifth New Dragnet Order Since “Reform” Started

/5 Comments/in /by

On December 12, 2013, almost one year ago, President Obama’s handpicked NSA Review Group made the following two recommendations.

Recommendation 1: We recommend that section 215 should be amended to authorize the Foreign Intelligence Surveillance Court to issue a section 215 order compelling a third party to disclose otherwise private information about particular individuals only if:
(1) it finds that the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and
(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

Recommendation 5: We recommend that legislation should be enacted that terminates the storage of bulk telephony meta-data by the government under section 215, and transitions as soon as reasonably possible to a system in which such meta-data is held instead either by private providers or by a private third party. Access to such data should be permitted only with a section 215 order from the Foreign Intelligence Surveillance Court that meets the requirements set forth in Recommendation 1.

Since that time, Obama has applied for and will, today, receive authorization for 5 extensions of the phone dragnet:

BR 14-01, signed by Thomas Hogan on January 3, 2014

BR 14-67, signed by Rosemary Collyer on March 28, 2014

BR 14-96, signed by James Zagel on June 19, 2014

BR 14-125, signed by Raymond Dearie on September 11, 2014

Along the way, Obama has instituted prior FISC review, added an emergency provision, given up on an automated query NSA had never been able to implement technically, even while standardizing “connection chaining.” The FISC also had to remind the government it must still abide by the legal requirement for prior First Amendment review, even when obtaining emergency orders.

By my count, the government has made 5 changes (or institutionalized prior changes) since the time Obama’s hand-picked review group recommended he give up the dragnet. As I noted yesterday, over the last year, 5 different Democrats have called on Obama to end the dragnet without waiting for legislation.

And yet, sometime today, the dragnet will be extended for another 3 months.

No One Benefits from a One (Wo)Man FISC Court

/2 Comments/in /by

Over at Just Security, Steve Vladeck takes issue with yet another proposal for a Drone Court.

A new chapter by Professors Amos Guiora and Jeffrey Brand–“Establishment of a Drone Court: A Necessary Restraint on Executive Power“–has been receiving a fair amount ofmedia and blog attention. The chapter differs from some prior calls for a “drone court” in seeing the Foreign Intelligence Surveillance Court (FISC) not as a model, but rather as a lesson in what not to do–a “non-starter,” in the authors’ words. Nevertheless, the chapter argues, we need a special “Operational Security Court” (OSC) comprised of already sitting Article III district and circuit judges (selected through a far different process from FISC judges) to strike the right balance between the government’s need to protect operational (and national) security and the rights of those targeted for drone operations to contest their targeting (through security cleared lawyers) ex ante.

My take on the proposal is slightly different from Vladeck’s. I take it as a proposal for a Sparkle Pony. The proper response to such a proposal is to point out all the reasons why we can’t have Sparkle Ponies. But I would end up largely where Valdeck is, looking at all the reasons FISC is failing its task, especially now that it has been blown up beyond proportion in the wake of President Bush’s illegal spy program. And Vladeck’s solution — to ensure people can sue after the fact — is a reasonable start.

That said, Vladeck asks an important question.

Finally, there’s the question of why an entire new court(the “OSC”) is needed at all. What’s wrong with giving the U.S. District Court for the District of Columbia exclusive original jurisdiction over these proceedings–as the Supreme Court has effectively provided in the secrecy-laden Guantánamo habeas cases? Even if one believes that ex ante judicial review of drone strikes is constitutionally and pragmatically feasible, why reinvent the wheel when there are perfectly good judges sitting in a perfectly good courthouse replete with experience in highly classified proceedings? 

In my insistence it’s time to get rid of FISC, I’ve been thinking the same thing: why can’t we just have all the DC District judges rule on these cases?

The biggest drawback I see in this is that it would mean the judges presiding over national security criminal cases — not even Espionage cases, which are more likely to be charged in EDVA — are not the same who preside over the National Security Court decisions. Just as an example, I think it important that a bunch of judges in Portland, OR are presiding over some of the more interesting national security cases. And for that reason I’m fascinated that Michael Mosman, who is presiding over the case of Reaz Qadir Khan, is also a FISC judge. While I don’t think Mosman brings a neutral approach to the Khan case, I do think he may be learning things about how the FISC programs work in practice.

But both sides of this debate, both the government and reformers, could point to Vladeck’s proposal as a vast improvement. That’s because it gets us out of what has become a series of one person courts.

Partly for logistical reasons (and potentially even for security reasons), rather than a court of 11 judges presiding over these expanding counterterrorism programs, we’ve actually had a series of single judges: Colleen Kollar-Kotelly, who presided over at least the Internet dragnet, some other important Pen Register rulings, and several initial Protect America Act reviews, then mostly Reggie Walton presiding over the Yahoo challenge and then the phone and Internet dragnet fixes, then John Bates presiding over the upstream fix (as well as reauthorizing and expanding the Internet dragnet). Presumably, presiding judge Thomas Hogan has assumed the role of one person court (though I suspect Rosemary Collyer, who is next in line to be presiding in any case, takes on some of this work).

And while I’d find great fault with some of Kollar-Kotelly and Bates’ rulings (and even some of Walton’s), I suspect the NatSec establishment was thrilled to see the end of  Walton on the court, because he dared to consider questions thoughtfully and occasionally impose limits on the intelligence programs.

No one benefits from having what works out to be primarily one judge review such massive programs. But that’s what we’ve effectively got now, and because it operates in secret, there’s no apparent check on really boneheaded decisions by these individual judges.

There are a lot of reasons to replace the FISC with review by normal judges, and one of them is that the current system tends to concentrate the review of massive spying programs in the hands of one or two judges alone.

The Verizon Publicity Stunt, Mosaic Theory, and Collective Fourth Amendment Rights

/19 Comments/in , /by

On Friday, I Con the Record revealed that a telecom — Ellen Nakashima confirms it was Verizon — asked the FISA Court to make sure its January 3 order authorizing the phone dragnet had considered Judge Richard Leon’s December 16 decision that it was unconstitutional. On March 20, Judge Rosemary Collyer issued an opinion upholding the program.

Rosemary Collyer’s plea for help

Ultimately, in an opinion that is less shitty than FISC’s previous attempts to make this argument, Collyer examines the US v. Jones decision at length and holds that Smith v. Maryland remains controlling, mostly because no majority has overturned it and SCOTUS has provided no real guidance as to how one might do so. (Her analysis raises some of the nuances I laid out here.)

The section of her opinion rejecting the “mosaic theory” that argues the cumulative effect of otherwise legal surveillance may constitute a search almost reads like a cry for help, for guidance in the face of the obvious fact that the dragnet is excessive and the precedent that says it remains legal.

A threshold question is which standard should govern; as discussed above, the court of appeals’ decision in Maynard and two concurrences in Jones suggest three different standards. See Kerr, “The Mosaic Theory of the Fourth Amendment,” 111 Mich. L. Rev. at 329. Another question is how to group Government actions in assessing whether the aggregate conduct constitutes a search.See id. For example, “[w]hich surveillance methods prompt a mosaic approach? Should courts group across surveillance methods? If so, how? Id. Still another question is how to analyze the reasonableness of mosaic searches, which “do not fit an obvious doctrinal box for determining reasonableness.” Id. Courts adopting a mosaic theory would also have to determine whether, and to what extent, the exclusionary rule applies: Does it “extend over all the mosaic or only the surveillance that crossed the line to trigger a search?”

[snip]

Any such overhaul of Fourth Amendment law is for the Supreme Court, rather than this Court, to initiate. While the concurring opinions in Jones may signal that some or even most of the Justices are ready to revisit certain settled Fourth Amendment principles, the decision in Jones itself breaks no new ground concerning the third-party disclosure doctrine generally or Smith specifically. The concurring opinions notwithstanding, Jones simply cannot be read as inviting the lower courts to rewrite Fourth Amendment law in this area.

As I read these passages, I imagined that Collyer was trying to do more than 1) point to how many problems overruling the dragnet would cause and 2) uphold the dignity of the rubber stamp FISC and its 36+ previous decisions the phone dragnet is legal.

There is reason to believe she knows what we don’t, at least not officially: that even within the scope of the phone dragnet, the dragnet is part of more comprehensive mosaic surveillance, because it correlates across platforms and identities. And all that’s before you consider how, once dumped into the corporate store and exposed to NSA’s “full range of analytic tradecraft,” innocent Americans might be fingerprinted to include our lifestyles.

That is, not only doesn’t Collyer see a way (because of legal boundary concerns about the dragnet generally, and possibly because of institutional concerns about FISC) to rule the dragnet illegal, but I suspect she sees the reverberations that such a ruling would have on the NSA’s larger project, which very much is about building mosaics of intelligence.

No wonder the government is keeping that August 20, 2008 opinion secret, if it indeed discusses the correlations function in the dragnet, because it may well affect whether the dragnet gets assessed as part of the mosaic NSA uses it as.

Verizon’s flaccid but public legal complaint

Now, you might think such language in Collyer’s opinion would invite Verizon to appeal this decision. But given this lukewarm effort, it seems unlikely to do so. Consider the following details:

Leon issued his decision December 16. Verizon did not ask the FISC for guidance (which makes sense because they are only permitted to challenge orders).

Verizon got a new Secondary Order after the January 3 reauthorization. It did not immediately challenge the order.

It only got around to doing so on January 22 (interestingly, a few days after ODNI exposed Verizon’s role in the phone dragnet a second time), and didn’t do several things — like asking for a hearing or challenging the legality of the dragnet under 50 USC 1861 as applied — that might reflect real concern about anything but the public appearance of legality. (Note, that timing is of particular interest, given that the very next day, on January 23, PCLOB would issue its report finding the dragnet did not adhere to Section 215 generally.)

Indeed, this challenge might not have generated a separate opinion if the government weren’t so boneheaded about secrecy.

Verizon’s petition is less a challenge of the program than an inquiry whether the FISC has considered Leon’s opinion.

It may well be the case that this Court, in issuing the January 3,2014 production order, has already considered and rejected the analysis contained in the Memorandum Order. [redacted] has not been provided with the Court’s underlying legal analysis, however, nor [redacted] been allowed access to such analysis previously, and the order [redacted] does not refer to any consideration given to Judge Leon’s Memorandum Opinion. In light of Judge Leon’s Opinion, it is appropriate [redacted] inquire directly of the Court into the legal basis for the January 3, 2014 production order,

As it turns out, Judge Thomas Hogan (who will take over the thankless presiding judge position from Reggie Walton next month) did consider Leon’s opinion in his January 3 order, as he noted in a footnote.

Screen Shot 2014-04-28 at 10.49.42 AM

And that’s about all the government said in its response to the petition (see paragraph 3): that Hogan considered it so the FISC should just affirm it.

Verizon didn’t know that Hogan had considered the opinion, of course, because it never gets Primary Orders (as it makes clear in its petition) and so is not permitted to know the legal logic behind the dragnet unless it asks nicely, which is all this amounted to at first.

Note that the government issued its response (as set by Collyer’s scheduling order) on February 12, the same day it released Hogan’s order and its own successful motion to amend it. So ultimately this headache arose, in part, because of the secrecy with which it treats even its most important corporate spying partners, which only learn about these legal arguments on the same schedule as the rest of us peons.

Yet in spite of the government’s effort to dismiss the issue by referencing Hogan’s footnote, Collyer said because Verizon submitted a petition, “the undersigned Judge must consider the issue anew.” Whether or not she was really required to or could have just pointed to the footnote that had been made public, I don’t know. But that is how we got this new opinion.

Finally, note that Collyer made the decision to unseal this opinion on her own. Just as interesting, while neither side objected to doing so, Verizon specifically suggested the opinion could be released with no redactions, meaning its name would appear unredacted.

The government contends that certain information in these Court records (most notably, Petitioner’s identity as the recipient of the challenged production order) is classified and should remain redacted in versions of the documents that are released to the public. See Gov’t Mem. at 1. Petitioner, on the other hand, “request[s] no redactions should the Court decide to unseal and publish the specified documents.” Pet. Mem. at 5. Petitioner states that its petition “is based entirely on an assessment of [its] own equities” and not on “the potential national security effects of publication,” which it “is in no position to evaluate.” Id.

I’ll return to this. But understand that Verizon wanted this opinion — as well as its own request for it — public.

Read more →

Judge Collyer’s Factually Erroneous Freelance Rubber Stamp for Killing American Citizens

/7 Comments/in , /by

As I noted on Friday, Judge Rosemary Collyer threw out the Bivens challenge to the drone killings of Anwar and Abdulrahman al-Awlaki and Samir Khan.

The decision was really odd: in an effort to preserve some hope that US citizens might have redress against being executed with no due process, she rejects the government’s claims that she has no authority to decide the propriety of the case. But then, by citing precedents rejecting Bivens suits, including one on torture in the DC Circuit and Padilla’s challenge in the Fourth, she creates special factors specifically tied to the fact that Awlaki was a horrible person, rather than that national security writ large gives the Executive unfettered power to execute at will, and then uses these special factors she invents on her own to reject the possibility an American could obtain any redress for unconstitutional executions. (See Steve Vladeck for an assessment of this ruling in the context of prior Bivens precedent.)

The whole thing lies atop something else: the government’s refusal to provide Collyer even as much information as they had provided John Bates in 2010 when Anwar al-Awlaki’s father had tried to pre-emptively sue before his son was drone-killed.

On December 26, Collyer ordered the government to provide classified information on how it decides to kill American citizens.

MINUTE ORDER requiring the United States, an interested party 19 , to lodge no later than January 24, 2014, classified declaration(s) with court security officers, in camera and ex parte, in order to provide to the Court information implicated by the allegations in this case and why its disclosure reasonably could be expected to harm national security…, include[ing] information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership, the specific threat posed by… Anwar-al Aulaqi, and other matters that plaintiff[s have] put at issue, including any criteria governing the use of lethal force, updated to address the facts of this record.

Two weeks later, the government moved to reconsider, both on jurisdictional grounds and because, it said, Collyer didn’t need the information to dismiss the case.

Beyond the jurisdictional issue, the Court should vacate its Order because Defendants’ motion to dismiss, which raises the threshold defenses of the political question doctrine, special factors, and qualified immunity, remains pending. The information requested, besides being classified, is not germane to Defendants’ pending motion, which accepts Plaintiffs’ well-pled facts as true.

As part of their motion, however, the government admitted to supplementing the plaintiffs’ facts.

Defendants’ argument that decedents’ constitutional rights were not violated assumed the truth of Plaintiffs’ factual allegations, and supplemented those allegations only with judicially noticeable public information, the content of which Plaintiffs did not and do not dispute.

The plaintiffs even disputed that they didn’t dispute these claims, pointing out that they had introduced claims about:

  • AQAP’s status vis a vis al Qaeda
  • Whether the US is in an armed conflict with AQAP
  • The basis for Awlaki’s listing as a Special Designated Global Terrorist

Ultimately, even Collyer scolds the government for misstating the claims alleged in the complaint.

The United States argued that the factual information that the Court requested was not relevant to the Defendants’ special factors argument because special factors precluded Plaintiffs’ cause of action, given the context in which the claims, “as pled,” arose––that is, “the alleged firing of missiles by military and intelligence officers at enemies in a foreign country in the course of an armed conflict.” Mot. for Recons. & to Stay Order at ECF 10. The United States, however, mischaracterizes the Complaint. Read more →

DC Circuit Sends CIA’s Glomar Claims Back to the Drawing Board

/9 Comments/in /by

The DC Circuit just remanded the ACLU’s drone targeted killing lawsuit (the one I talked about here) to the District Court.

The decision is based on a theory Merrick Garland used in the hearing (which Wells Bennett analyzed here). Whether or not the CIA had admitted to the agency being involved in drones, it had admitted to having an interest in them. Which makes any claim that it cannot reveal it has documents ridiculous.

And there is still more. In 2009, then-Director of the CIA Leon Panetta delivered remarks at the Pacific Council on International Policy. In answer to a question about “remote drone strikes” in the tribal regions of Pakistan, Director Panetta stated:

[O]bviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. . . . I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.8

It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore “interest” in — drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at this point neither logical nor plausible.

It is true, of course, that neither the President nor any other official has specifically stated that the CIA has documents relating to drone strikes, as compared to an interest in such strikes. At this stage of this case, however, those are not distinct issues. The only reason the Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its interest in that subject. And more to the point, as it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.

But again, there is more. In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Read more →

Targeted Killing Timeline

/27 Comments/in , /by

A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

Read more →

Is the Government Worried about Revealing Broader Targeted Killing Authority in the Drone FOIAs?

/16 Comments/in , , , , /by

In addition to yesterday’s letter’s explanation that the government needed an extension in ACLU and NYT’s Anwar al-Awlaki drone FOIA because Obama and/or his closest aides–the highest level of the Executive Branch–were getting involved, there was one other interesting phrase I wanted to note: the way in which it portrays the FOIA.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. [my emphasis]

That description doesn’t precisely match the request in any of the three FOIAs, which ask for:

ACLU: the legal authority and factual basis of the targeted killing of [Anwar] al-Awlaki, Abdulrahman [al-Awlaki], and [Samir] Khan.

NYT Savage: all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

NYT Shane: all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

The government seems squeamish, first of all, about repeating the language used in all three of these requests–targeted killing–opting instead for the phrase “targeted lethal operations.” Note, significantly, that these requests, and especially Shane’s, would not be limited to drone strikes, but also would include hit squads.

The government understandably opts not to use the names specified by ACLU, opting instead to use the generic “US citizen” used by Savage.

Equally understandably, it uses Shane’s language to describe the target: “Al-Qaeda or other terrorist groups.” But I find the adoption of Shane’s formulation significant, because it is much broader than the language from the AUMF:

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

And somewhat broader than the language from the NDAA:

person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners

Now, it’s not just Shane’s language that broadens the scope here. None of the three requests mention AQAP, which would at least give the government the ability to focus on questions about how it decided that Awlaki was a legitimate target under the AUMF (on that topic, note this exchange between Robert Chesney and Bruce Ackerman). Both NYT requests ask for information about targeting terrorists generally. Which might get into some interesting targeting decisions both specific to Pakistan (for example, the original decision to target Beitullah Mehsud–and therefore the Pakistani Taliban–was based on a potentially erroneous information about a dirty bomb) and more generally in places like Gaza or Iran or Latin America.

In other words, if the government maintains it has the authority to assassinate terrorists, generally, perhaps tied to the Iraq AUMF or perhaps tied to the Gloves Come Off MON, then this language might make it hard for the government to provide a tidy response to this FOIA.

Read more →