Posts

Well, at Least DOJ Promised Not to Mine Journalists’ Metadata Going Forward

/5 Comments/in , , , /by

When I read this passage from DOJ’s new News Media Policy, it caused me as much concern as relief.

The Department’s policies will be revised to provide formal safeguards regarding the proper use and handling of communications records of members of the news media. Among other things, the revisions will provide that with respect to information obtained pursuant to the Department’s news media policy: (i) access to records will be limited to Department personnel who are working on the investigation and have a need to know the information; (ii) the records will be used solely in connection with the investigation and related judicial proceedings; (iii) the records will not be shared with any other organization or individual inside or outside of the government, except as part of the investigation or as required in the course of judicial proceedings; and(iv) at the conclusion of all proceedings related to or arising from the investigation, other than information disclosed in the course of judicial proceedings or as required by law, only one copy of records will be maintained in a secure, segregated repository that is not searchable.

It is nice for the subset of journalists treated as members of news media whose calls get treated under these new policies and not — as still seems possible — under the apparently more permissive guidelines in the FBI’s Domestic Investigations and Operations Guide that when their call and other business records are collected, some of that information will ultimately be segregated in a non-searchable collection. Though why not destroy it entirely, given that the information used for the investigation and court proceedings will not be segregated?

Moreover, this passage represents a revision of previous existing policy.

Which means data from members of the news media may not have been segregated in the past.

When you consider that one of the abuses that led to these new policies included the collection of 20 phone lines worth of data from the AP — far, far more than would be warranted by the investigation at hand — it raises the possibility that DOJ used to do more with the data it had grabbed from journalists than just try to find isolated sources.

Like the two to three hop analysis they conduct on the Section 215 dragnet data.

It’s with that in mind that I’ve been reading the reports that Kiwi troops were wandering around Kabul with records of McClatchy freelancer Jon Stephenson’s phone metadata.

The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone “metadata” for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a “tree” of the journalist’s associates.

New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.

The sources believed the phone monitoring was being done to try to identify Stephenson’s journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.

The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.

Last year, when this happened, Stephenson was on the Green-on-Blue beat, He published a story that a massacre in Pashtun lands had been retaliation for the killing of Taliban. He reported on another NATO massacre of civilians. He reported that a minister accused of torture and other abuses would be named Hamid Karzai’s intelligence chief. Earlier last year he had reported on the negotiations over prisoner transfers from the US to Afghan custody.

Now, the original report made a both a credibility and factual error when it said Stephenson’s metadata had been “intercepted.” That has provided the Kiwi military with a talking point on which to hang a non-denial denial — a point Jonathan Landay notes in his coverage of the claims.

Maj. Gen. Tim Keating, the acting chief of New Zealand’s military, said in a statement that no military personnel had undertaken “unlawful interception of private communications.”

“I have asked the officers responsible for our operations in Afghanistan whether they have conducted monitoring of Mr Stephenson . . . and they have assured me that they have not.”

The statement, however, did not address whether metadata, which includes the location from where a call is made, the number and location of the person who is being called and the duration of the call, was collected for Stephenson’s phones. Such data are generally considered business records of a cell phone provider and are obtained without intercepting or real-time monitoring of calls. In the United States, for example, the Foreign Intelligence Surveillance Court has ordered Verizon to deliver such records of all its customers to the National Security Agency on a daily basis.

While under contract to McClatchy, Stephenson used McClatchy cell phones and was in frequent contact with McClatchy editors and other reporters and correspondents. [my emphasis]

Indeed, higher ranking New Zealand politicians are trying to insinuate that Stephenson’s call records would only be collected if he was communicating with terrorists — even while admitting the government did have a document treating investigative journalists like terrorists.

Prime Minister John Key said it’s theoretically possible that reporters could get caught in surveillance nets when the U.S. spies on enemy combatants.

[snip]

Also Monday, New Zealand Defense Minister Jonathan Coleman acknowledged the existence of an embarrassing confidential order that lists investigative journalists alongside spies and terrorists as potential threats to New Zealand’s military. That document was leaked to Hager, who provided a copy to The Associated Press. Coleman said the order will be modified to remove references to journalists.

Finally, New Zealand officials seem to be getting close to blaming this on the US.

“The collection of metadata on behalf of the NZDF by the U.S. would not be a legitimate practice, when practiced on a New Zealand citizen,” Coleman said. “It wouldn’t be something I would support as the minister, and I’d be very concerned if that had actually been the case.”

Thus far, the coverage of the Stephenson tracking has focused on the Kiwi role in all of it. But as Landay notes, Stephenson would have been using McClatchy-provided cell phones at the time, suggesting the US got the records themselves, not by intercepting anything, but simply by asking the carrier, as they did with the AP.

Ultimately, no one is issuing a direct denial that some entity tied to ISAF — whether that be American or New Zealand forces — collected the phone records of a journalist reporting for a US-based outlet to try to identify his non-friendly sources.

So what other journalists have US allies likened to terrorists because they actually reported using both friendly and unfriendly sources?

Mike Rogers: IRS Scandal Is Real, NSA Scandal Is Not; AP Collection Is a Dragnet, Section 215 Collection Is Not

/14 Comments/in , , /by

One of the four members of Congress with greatest influence over this country’s “intelligence,” House Intelligence Chair Mike Rogers, claims that the IRS scandal is real and the risk of NSA dragnet is not.

Rogers said Amash’s amendment, which stops the NSA from collecting data under the Patriot Act, was an attempt to take advantage of anger over recent scandals including the Internal Revenue Service’s targeting of conservative groups applying for tax exempt status and the Justice Department’s probe of Associated Press journalists in connection to a leak about a thwarted terrorist plot that originated in Yemen.

“It’s certainly inflammatory and certainly misleading,” Rogers said Wednesday in an interview on Michigan radio station WTKG 1230. “I think, he tried to take advantage at any rate of people’s anger of the IRS scandal, which is real, and the AP —Associated Press dragnet by the Attorney General, Benghazi —all of those things are very real and there’s no oversight function “What they’re talking about doing is turning off a program that after 9/11 we realized we missed —we the intelligence community- missed a huge clue.” [my emphasis]

Note, too, that Rogers calls the (completely inappropriate) collection of the phone records for 20 AP phone lines a “dragnet,” but somehow doesn’t think the collection of the phone records for every single American is also a dragnet.

Again, this dude plays a significant role in this country’s “intelligence.”

From there, Rogers declined into outright misinformation.

Rogers added that NSA’s telephone data collection program has helped thwart over 50 terrorist plots.

The Section 215 collection — the only thing that would be affected by the Amash-Conyers amendment — has had a role in (per Keith Alexander’s latest claims) 13 plots.

Not 50.

13.

I can’t think of a better way for Mike Rogers to demonstrate that these programs have insufficient oversight — in which the Intelligence Committees play a crucial role — than to open his yap and make such ludicrous statements.

“Section 215 Is Silent”

/10 Comments/in , /by

Justin Amash has a useful fact sheet on the Amash-Conyers amendment that would defund dragnet 215 collection. (If you haven’t yet called your Congressperson and told her to support the amendment, please do so!)

As a whole, the fact sheet clears up some misconceptions about the amendment, making it clear, for example, that the amendment only returns the meaning of Section 215 to the intent Congress had when it first passed.

Given that the fact sheet — dated today — appears to post-date yesterday’s TS/SCI briefing by Keith Alexander and James Clapper, I am particularly interested in these two sentences.

The administration has not provided a public explanation as to how the telephone records of all Americans are “relevant” to a national security investigation.  Similarly, Sec. 215 is silent as to how the government may use these records once it has obtained them.

The language seems to suggest the Administration has provided a classified explanation as to how phone records became “relevant to” a massive terrorism investigation.

More interestingly, the next sentence points to the Administration’s silence about how the government can use this dragnet collection.

That’s a concern I’ve long had. After all, only FISA Court minimization might, with very strict language, prevent the National Counterterrorism Center from simply copying the dragnet database and data mining it with abandon. And so I find it interesting that a document released after yesterday’s TS/SCI hearing mentions the possibility the government does something with it beyond what they’ve stated publicly.

If this were a Ron Wyden statement, I’d take it as a big hint. I’m not sure it is meant as such here, but it does heighten my concerns that this data is circulated far more widely than the government has admitted.

After 7 Years of Refusing Any Public Debate, Executive Decries Congress for Not Being “Open”

/15 Comments/in , /by

Here’s what the Administration thinks about the Amash-Conyers amendment (which it calls the Amash Amendment, perhaps not wanting to name a Democrat who has been involved in historic fights against out-of-control executive power in the past), which would defund dragnet Section 215 collection.

In light of the recent unauthorized disclosures, the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens. The Administration has taken various proactive steps to advance this debate including the President’s meeting with the Privacy and Civil Liberties Oversight Board, his public statements on the disclosed programs, the Office of the Director of National Intelligence’s release of its own public statements, ODNI General Counsel Bob Litt’s speech at Brookings, and ODNI’s decision to declassify and disclose publicly that the Administration filed an application with the Foreign Intelligence Surveillance Court. We look forward to continuing to discuss these critical issues with the American people and the Congress.

However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.

I find it interesting, first of all, that they sent this after Keith Alexander had his shot to lobby Congress in a Top Secret/SCI briefing. I guess they didn’t come away with a high degree of confidence Amash-Conyers was going to fail.

Then consider the head-spinning logic:

  • Unauthorized disclosures led to a Presidential claim he welcomes a “debate”
  • It lists several examples in which Executive Branch figures tell the public details about this surveillance (note the White House didn’t mention the NSA documents, which had to be withdrawn for inaccuracies); it calls these “proactive” in spite of the fact that they are all clear reactions to that unauthorized disclosure
  • It reiterates that it considers these one-way communications discuss[ions]
  • After saying one-way communication is discussion, the Administration says, “this blunt approach is not the product of an informed, open, or deliberative process”
  • Having made this ridiculous argument, the White House says it wants a “reasoned review”

Hell, if I were a self-respecting member of Congress, I’d support Amash-Conyers even if I weren’t already predisposed to, if only because this is such a crazy bat-shit claim to reason and openness.

The Executive Branch has had 7 years to have an open debate. It chose not to have that open debate. Now that one has been brought to it by Congress, it pretends Congress is the one at fault for the lack of informed or open process.

Working Post on Government Motion in Moalin Prosecution

/1 Comment/in , /by

As I described in this post, the government’s opposition motion to Basaaly Saeed Moalin’s challenge to the FISA intercepts used to convict him is a doozy. I showed there how complex the collections used to convict him were (and presumably still are).

This is going to be a working post cataloging all the other interesting aspects of the government’s motion.

The page numbers are to hard page numbers; PDF page numbers are one number higher.

P1: Note the first redacted footnote modifying FISA. The footnote may discuss the other things also including under FISA, including the Section 215 application.

P1: For a variety of reasons — not least that the government only noticed the physical surveillance application under FISA after Moalin challenged the FISA intercepts — I think the “physical” searches have some relation to the electronic surveillance as well. Note the footnoted sentence is followed by an entirely redacted passage (on P2) that itself is footnoted.

P3: The last sentence of the first paragraph reads, “After [Aden] Ayrow [the Somali warlord Moalin may have first been targeted off of] was killed, the defendants continued to collect funds and transmit them to Somalia to support violence against the TFG and its supporters.” Note, most of the money Moalin transfered did not go to al-Shabaab (and given footnote 5, I suspect the government knows of even more money that went to entirely acceptable charitable causes).

Read more →

Did the Government Change When — and How — It Minimized US Person Collections Since 2008?

/4 Comments/in , /by

I’ve been digging through the weeds of the government’s response to Basaaly Saeed Moalin’s challenge of the FISA materials used in his trial. As a reminder, this is one of just two examples of a case where the government has admitted to using the Section 215 database to capture a terrorist (they now say they’ve used the database in 13 cases total, presumably since 2006).

In a section starting on page 50, the government argues the collection leading to Moalin’s indictment (and since then, his conviction) was “lawfully conducted.”

[T]he FISA-obtained or -derived information that wil be offered into evidence in this case was acquired, retained, and disseminated by the FBI in accordance with FISA’s minimization requirements, and the implementing standard minimization procedures (“SMPs”) promulgated by the Attorney General and approved by the FISC.

As this document mapping out the structure of the argument, the first and only section of their proof addresses minimization. That may seem kind of weird, but remember that the Intelligence Community sometimes calls this collection “collection carried out pursuant to the Section 702 minimization procedures.” (Though keep in mind that the collection in question took place under the Protect America Act starting in 2007.)

What I’m particularly interested in, however, is that following an initial redacted section and footnote addressing minimization, the government’s motion addresses two sets of standard minimization procedures (see the first sentence of document page 51). At first, I thought the invocation of “both” pertained to one procedure for electronic and another procedure for physical surveillance (the government used both in its case against Moalin). But the full reference refers to the “current”  and the “old” SMPs.

Under FISA and both sets of SMPs, minimization “may occur at any of several stages, including recording, logging, indexing, or dissemination.” lARA, 2009 WL 5169536, at *6 (citing Kevork, 634 F. Supp. at 1017); Senate Report at 40; current SMPs,, Section I.A., pp. 1-2. At the acquisition stage, FISA does not “prohibit the use of automatic tape recording equipment.” Rahman, 861 F. Supp. at 252; Kevork, 634 F. Supp. at 1017. Indeed, the FISC has noted that FISA surveillance devices are normally left on continuously and that consequently minimization occurs (under the old SMPs) during the logging and indexing of the pertinent communications.88 See In re Sealed Case, 310 F.3d at 740.

Remember, the wiretaps used in this case date to December 2007 to April 2008. The motion was written in February 2012. This seems to suggest the “old SMPs” were in place in 2007-08, but they have been replaced since then. And the distinction between the two — and an explanation for why they would both be relevant to the question of legality — must appear in a redacted section, perhaps the one that immediately precedes this passage.

Note, these appear to both be different from the minimization procedures leaked by Edward Snowden, which have a date stamp from July 29, 2009. Those address collections under Section 702 of FISA, whereas the reference to SMPs in In Re Sealed Case cited above describes “Standard Minimization Procedures for U.S. Person Agent of a Foreign Power,” as referred to in this passage of that ruling.

The most critical step in retention is the analysis in which an informed judgment is made as to whether or not the communications or other data seized is foreign intelligence information. To guide FBI personnel in this determination the Standard Minimization Procedures for U.S. Person Agent of a Foreign Power in Section 3(a)(4) Acquisition/Interception/Monitoring and Logging provide that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime . . . may not be logged or summarized.” (emphasis added). Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

This seems to suggest the minimization procedures from 2002 (the ones invoked in this ruling) remained roughly the same until the “old SMPs” referred to in this passage.

But it also appears the passage doesn’t treat the “current” SMPs as the Snowden version either. That’s because there is no section I.A. in those — and certainly not one discussing logging and indexing.

I raise all this because the new ones seem to allow minimization (or not) at two more different stages: at the collection phase (which, given the description of the kinds of collection they conduct, might be computerized) or at the dissemination stage. Given the language in the minimization procedures we’ve seen (and the discussion that follows this passage, which talks about the looser minimization in terrorism cases), that seems to allow decisions long after the initial “collection.” (Remember, in this case, the government decided in 2009 not to prosecute but then in 2011, following the prosecution of the hawala involved, did decide to do so.)

In the Section 702 context, there appears to be little logging and indexing (which is why the government can claim it can’t say how many Americans get sucked up as “incidental” collection). I wonder if part of this change reflects a de-emphasis of logging and indexing for specific warrants as well?

NSA: The “Half-Bacon Agency”

/15 Comments/in , /by

My mom’s in town, so I’ll be doing light posting over the next several days.

But I did want to emphasize the rather startling news that came out of yesterday’s House Judiciary Committee on the NSA spying programs.

NSA Director John Inglis revealed that the FISA Court permits the government to do three jumps from an initial number tied to a phone number reasonably believed to be tied to terrorism (or relevant to Iran, though that search criteria didn’t get mentioned at all in the parts of the hearing I watched).

Three degrees of separation!

Remember, some years ago, every single person in the US could be connected via six degrees — the old Kevin Bacon game. There’s some evidence that that number has become smaller — perhaps as small as 3 (I’ve seen more scientific numbers that say it is 4.5 or thereabouts).

In any case, if the US is using the excuse of terror to get three jumps deep into US person associations, then this program is even more intrusive then they’ve let on.

One thing I didn’t see disclosed yesterday? To what extent the government claims these 3- (or 2, which — IIRC — Deputy Attorney General James Cole said was their most productive layer) degrees of separation from someone claimed in an articulation not closely reviewed has ties to terrorism. Is talking to someone who talks to someone who talks to someone who is a terrorist used, in secret, to claim people are agents of a foreign power?

In any case, this means the NSA has been spending its time playing 3 degrees of separation from Kevin Bacon in secret.

What Does the Government Consider “Protected” First Amendment Activities?

/13 Comments/in , /by

[youtube]GDFIVVmXE-g[/youtube]

The other day, AP’s Matt Lee called out State Department spokesperson Jen Psaki’s suggestion that Edward Snowden is not entitled to free speech.

QUESTION: Okay. Then I just don’t understand. I think this is an incredibly slippery slope that you’re going down here, that the U.S. Government is going down here, if you are coming up and saying to us that you’re trying to prevent an American citizen – albeit one who has been accused of serious crimes – from exercising his right to free speech. You don’t agree with that?

MS. PSAKI: I believe that what I’ve conveyed most proactively here is our concern about those who helped facilitate this event —

QUESTION: Yes.

MS. PSAKI: — and make it into a propaganda platform.

QUESTION: Right. And —

QUESTION: Or a public asylum —

QUESTION: — the propaganda platform aside, free speech covers propaganda. Last time I checked, it covers a lot of things. And I don’t see, unless he’s somehow violated U.S. law by speaking at this – at the Russian – the transit line at the Russian airport, I don’t see why you would be disappointed in the Russians for, one, facilitating it, but also, apparently from what it sounds like, tried to discourage them from – tried to discourage this – them from allowing this event to take place in the – to take place at all.

MS. PSAKI: Well, Matt, this isn’t happening, clearly, because we wouldn’t be talking about it, in a vacuum. And this is an individual, as we all know, who has been accused of felony crimes in the United States. We have expressed strongly our desire to have him returned —

QUESTION: I understand.

MS. PSAKI: — to face those charges. This is all applicable context to these circumstances.

QUESTION: But as you have also said, he is a U.S. citizen.

MS. PSAKI: He is, yes.

QUESTION: He remains a U.S. citizen, and he enjoys certain rights as a U.S. citizen. One of those rights, from your point of view, is that he has the right to come back and face trial for the crimes he’s committed. But the rights that you’re not talking about are his right to free speech, his right to talk with whoever he wants to, freedom to assemble. I don’t understand why those rights are – why you ignore those and simply say that he has – that he’s welcome to come back to the United States to exercise his right to be tried by a jury of his peers. Why is that the only right that he gets, according to this Administration? [my emphasis]

As it happens, I read it about the same time i read this passage, from the government’s opposition to Basaaly Saeed Moalin’s challenge to the FISA-derived evidence against him (see this post for more background).

Moalin claims he was fargeted for FISC-authorized surveillance in violation of FISA’s stipulation that no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment. Docket No 92 at 18-19 (citing 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A)). Although protected First Amendment activities canot form the sole basis for FISC-authorized electronic surveillance or physical search, not all speech-related activities fall within the protection of the First Amendment. See infra at 70.

That is, when faced with limitations on surveillance based on First Amendment activities, the government claimed that not all speech is protected.

(Note, I’m not certain because the page numbers listed in this unclassified motion are to the pagination of the classified motion, but I believe that reference to speech that is not protected is redacted.)

That’s important because of the narrative the government presented in this motion (which is different from what Sean Joyce presented to the House Intelligence Committee — I believe both narratives are in fact badly misleading).

In the materials presented in this case, the government suggests FISA-authorized surveillance on Moalin’s calls with al-Shabaab warlord Aden Ayrow started, out of the blue, in December 2007, several months before al-Shabaab was listed as a Foreign Terrorist Organization. I’m not aware of any evidence it presents that precedes these calls. Yet these early calls show no evidence of criminal behavior.

Thus, the evidence suggests that merely calling someone considered a terrorist but whose group was not yet officially designated as such by the government makes one an agent of a foreign power.

Read more →

Hiding the 215 Index from Defendants, Too

/3 Comments/in , , /by

Adam Liptak reviews one of the issues I laid out in this post and the ACLU first laid out here. The government is reneging on multiple promises made over the course of the Amnesty v. Clapper case — including to SCOTUS itself — to make sure defendants could challenge evidence collected under “the program” (then defined as Section 702 of the FISA Amendments Act).

But I’m particularly interested in Liptak’s focus on the government’s use of “derived from” here.

If the government wants to use information gathered under the surveillance program in a criminal prosecution, [Solicitor General Don Verrilli] said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Mr. Verrilli said this pretty plainly at the argument and even more carefully in his briefs in the case.

In one brief, for example, he sought to refute the argument that a ruling in the government’s favor would immunize the surveillance program from constitutional challenges.

“That contention is misplaced,” he wrote. “Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from” the surveillance authorized by the 2008 law “against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.” (Note the phrase “derived from.”)

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. [my emphasis]

It’s time to broaden the focus of this discussion, finally. It’s time to include both Section Section 215 collection (metadata) and 702 collection (content) in this discussion together.

As I have noted, the government has claimed these are “distinct issues” and that 215 metadata collection is not part of the 702 content creation.

But in an interview, Edward Snowden claims the metadata is used to identify and pull content.

In most cases, content isn’t as valuable as metadata because you can either re-fetch content based on the metadata or, if not, simply task all future communications of interest for permanent collection since the metadata tells you what out of their data stream you actually want.

And James Clapper described metadata as a kind of Dewey Decimal system that allows the government to pull selected conversations from its giant library of all conversations.

ANDREA MITCHELL: At the same time, when Americans woke up and learned because of these leaks that every single telephone call in this United States, as well as elsewhere, but every call made by these telephone companies that they collect is archived, the numbers, just the numbers, and the duration of these calls. People were astounded by that. They had no idea. They felt invaded.

JAMES CLAPPER: I understand that. But first let me say that I and everyone in the intelligence community all– who are also citizens, who also care very deeply about our– our privacy and civil liberties, I certainly do. So let me say that at the outset. I think a lot of what people are– are reading and seeing in the media is a lot of hyper– hyperbole.

A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world’s infrastructure, communications infrastructure is in the United States.

There are no limitations on the customers who can use this library. Many and millions of innocent people doing min– millions of innocent things use this library, but there are also nefarious people who use it. Terrorists, drug cartels, human traffickers, criminals also take advantage of the same technology. So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.

You think of the li– and by the way, all these books are arranged randomly. They’re not arranged by subject or topic matter. And they’re constantly changing. And so when we go into this library, first we have to have a library card, the people that actually do this work.

Which connotes their training and certification and recertification. So when we pull out a book, based on its essentially is– electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we’re picking out. And if it’s one that belongs to the– was put in there by an American citizen or a U.S. person.

We ha– we are under strict court supervision and have to get stricter– and have to get permission to actually– actually look at that. So the notion that we’re trolling through everyone’s emails and voyeuristically reading them, or listening to everyone’s phone calls is on its face absurd. We couldn’t do it even if we wanted to. And I assure you, we don’t want to.

ANDREA MITCHELL: Why do you need every telephone number? Why is it such a broad vacuum cleaner approach?

JAMES CLAPPER: Well, you have to start someplace. If– and over the years that this program has operated, we have refined it and tried to– to make it ever more precise and more disciplined as to which– which things we take out of the library. But you have to be in the– in the– in the chamber in order to be able to pick and choose those things that we need in the interest of protecting the country and gleaning information on terrorists who are plotting to kill Americans, to destroy our economy, and destroy our way of life.

And according to William Arkin, the 215 metadata database, called MAINWAY, is considered a “signals navigation database.”

In other words, the 215 database is at least sometimes used as a roadmap to all the other collections the NSA gathers.

As I’ll show in a follow-up post, how that roadmap is used may go to the heart of the legitimacy of investigations into American.

I’m not entirely sure what discovery obligations the government thinks it has with this tool. But given that it’s a moment where the government claims to be exercising reasonable cause analysis (in secret) it sure ought to be disclosed.

Five Additional Questions for Jim Comey

/16 Comments/in , , /by

Colleen Rowley has a great list of questions Jim Comey should be asked today in his confirmation hearing (I’ll be live-tweeting it, so follow the twitter feed over there. >>>>>>

Here are five questions I would add:

  1. The May 10, 2005 torture authorization you signed off (as well as the Combined of the same date one you objected to) on was retrospective. What were the circumstances of the treatment of this detainee? Was that detainee water-boarded, in spite of CIA claims only Abu Zubaydah, Ibn Rahim al-Nashiri, and Khalid Sheikh Mohammed were?
  2. Do you believe the High Value Interrogation Group (HIG) should be authorized to use “separation,” including modified sleep deprivation, to coerce confessions?
  3. Do you believe it legal or advisable to delay presentment for detainees interrogated by HIG so as to set up up to two weeks of unsupervised interrogation?
  4. FBI has used the Section 215 authorization — the same law used to collect every American’s phone data — to collect lists of common products that on very rare occasions have been used as precursors to explosives. They could and may well have used the same authority with pressure cookers. Is collecting such a broad sweep of innocent activity in pursuit of terrorists the best way to identify them? What do you believe the appropriate use of Section 215 authority is?
  5. Through the entire financial crisis, it appears the FBI did not use all the investigative tools available, including (with two or three notable exceptions) wiretaps and phone and Internet tracking, when investigating large financial institutions. This appears to be true even when, as with your former employer HSBC, the institution had clear ties to terrorists and Transnational Criminal Organizations. What tools do you believe appropriate to investigate large financial institutions and do you plan to change the approach to investigating financial crime?