The EFF FOIA Working Thread

Update: Here’s the Vaughn Index so you can see what DOJ claimed it was handing over.

I’m just now getting to reading the documents from the EFF FOIA.

The two sets of documents are:

MadDog and Jim White have a bunch of comments on the documents in this thread.

Here are some of my thoughts, starting with the latter of the two collections.

Statutes of Limitation

As MD points out, there’s a document that appears to have been sent on June 11, 2008 that discusses statutes of limitation.

(3) In any event, there is a very good chance that many of the claims would be barred by the relevant statutes of limitations.

I’m interested in this for two reasons. First, if they are speaking of specific claims being barred by statutes of limitation, they must be tracing those claims to dates of actual illegal wiretapping, right? In other words, this seems to be an admission that there were valid claims.

But the other interesting thing is the date: June 2008. The statute of limitations on this stuff is 5 years long. Which means they’re saying that “many” of the claims–and therefore much of the illegal wiretapping–took place on or before June 11, 2003. Which is earlier than you’d think.

Update, from below: bmaz suggests they’re talking about civil SOLs.

Ah, but when you assume a five year statute of limitation, you are applying the criminal SOL. They are quite likely, and sure appear to be, talking about the civil SOL, which is generally two years for actions against the Federal government.

But Mary reminds that we’re not just talking about suits against the government, but in fact primarily against the telecoms.

bmaz, is that the sol for a civil action not involving gov (like against telecoms) as well?

Physical Searches, Acquisition of, and “Political Reasons”

This entire email from David Grannis–who appears to have been working for the Democrats on SSCI in 2008 (and, given the subject, possibly for DiFi)–is worth reading:

Please find attached the leg counsel version of the exclusivity language we discussed last night. A quick note on the text:

Instead of repeating the phrase “physical search of stored electronic communications or stored electrionic data in the custody of an electronic communications service provider,” I propose that we use the phrase “acquisition of stored electronic communications” and then add a definition for “stored electronic communications” that uses all of the first term. This avoids repeating a very unwieldy phrase four times in the amendment, and it does not speak directly to the question of whether the acuisition of a stored communication is surveillance or a search, which I understand to be a plus for DOJ.

On a general note–we have tried to take the concerns of the ODNI and DOJ very seriously in drafting this language. I think this gives the Executive all the authority and flexibility that you said would be needed, but with reasonable constraints, trigger mechanisms, and oversight that is necessary to substantive and political reasons. If there is something we have missed, let’s talk, but we really hope this language will be acceepted and we can finally put the exclusivity debate behind us.

Okay, several points on this. First, the “unwieldy” phrase suggests some of the area where Bush was playing fast and loose–suggesting a distinction between, for example, a physical search and some other kind, and a distinction between stored electronic communications and stored electronic data. In other words, it’s possible that Bush bypassed FISA’s exclusivity provision by claiming they were searching “data” and not “communications”–which makes sense, since the vacuumed data was searched at a metadata level, and Bush and other Republicans like to insist that metadata never contains any content.

Next, note that DOJ didn’t want to have to commit to whether collecting and searching this data was surveillance or an actual search. In the prior email, John Demers at DOJ says:

I prefer spelling out “electronic surveillance or the physical search of stored electronic communications or data…”–the way you have it. THe reason for that is that it strengthens the idea that acquiring stored electronic communications is a physical search, a legal question we may need to revisit for reasons best discussed in a classified setting and unrelated to FISA modernization.

That is, DOJ wants it to be a search, not surveillance. I’ll come back to this one–but I suspect it has to do with remaining fluidity about how they’re legally justifying this stuff.

Finally, look at what this Dem staffer in the Senate was trying to do: impose constraints for “substantive and political” reasons. Funny, isn’t it, how he doesn’t mention legal reasons? You know–the pesky Fourth Amendment and all?

Protection for foreign power staffers, but not average Americans?

This seems like a fairly random concern on the part of SSCI members:

To address some of our colleagues’ concerns that there could be collection under 705 on an employee of a foreign power that doesn’t involve foreign intelligence, we added in a certification by the AG that the information is FI and a significant purpose of the acquisition is to obtain FI. Review on this certification is limited to whether the certification contains all required elements.

At first, I got really conspiratorial, imagining this was an attempt to protect the foreign citizen staffers of certain choice foreign countries (Israel and Saudi Arabia, for example). But I suspect the concern is actually more mundane: that the Americans who work at–say–foreign embassies should be immune from wiretaps on non-political conversations.

Still, given how thin the protections are for all Americans, this seems like a misplaced concern.

An earlier email seems to address this same issue, from the reverse.

We are working on getting you information on our 2.5 practice. A quick look reveals that about one-third of the AG-approved requests this year would not have met the FISA definition of an agent of a foreign power (as required in the bill) — the problem is FISA section 1801(b)(1)(a).

Jay Rock’s Jello Jay’s preference for an intelligence Inspector General

In an email discussing plans for the House bill that got kicked back to the Senate, a Rockefeller staffer writes the following:

The IG provision is included–as the text had been developed by Senator Leahy, with the House modification that the IGs should select one of them who is presidentially appointed and Senate confirmed to coordinate the review. Not to mix up legislative issues, but we would be happy of that turned out to be an Inspector General for the Intelligence Community.

Since just about the only non-Intelligence IG involved in this review was DOJ’s Glenn Fine, this seems to be an expression of not wanting Fine as much as it is support for anyone else. Note, of course, that Fine still did his own IG report that was melded into the others (though we didn’t get it).

Courts can’t authorize because of laws in other countries

Don’t know what to make of this (page 8). This is an email from an SSCI staffer to their legislative counsel, but appears to be passing on DOJ’s objections to a draft of the bill.

I think we have to go back to the language similar to the original formulation here for the order. Your formalation has the court authorizing the acquisiton. We can’t have the Court actually authorizing acquisitions in this context, because the means of surveillance might violate the laws of some foreign country. Thus, the Court can only issue and order stating that the required elements have been met.

Huh? Are they saying that these FISA orders are used in other countries? And that they can’t claim that our AG and/or Courts authorized them?

The means of collection are secret

In this email from Jack Livingston to John Demers (page 47), he suggests there’s an issue with telling FISC how they’re going to collect communications.

I’m thinking we might need to add a limited certification to the 705 procedures that would include a limited certification that a significãnt purpose of the
acquisition is to obtain foreign intelligence information. Nothing in the certification will refer to the means, as do current FISA certification requirements.

Does that mean they didn’t want to either reveal or be heald accountable for how they had told FISC they were going to collect this information? (Note, too, page 51, where they avoid adding in language pertaining to stored data.)

The providers did not act in good faith

That’s the implication, anyway, from this passage (page 6), in an email from Kathleen Rice to John Demers.

John-one suggestion that keeps coming up with the immunity/substitution discussion is to have the FISC determine whether the providers acted in good faith. We think this is not a good idea for obvious reasons. lt would be good to have the AG ready to respond in case a question comes up about this in today’s briefìng

After all, if it would be too dangerous for the FISC to determine whether the providers acted in good faith, then it’s pretty likely at least some of them did–that is, knowing full well they were breaking the law.

The Courts can’t weigh minimization

Here’s another reference I don’t understand very well. In an email to Ben Powell (GC DNI) about Sheldon Whitehouse’s efforts to put real minimization in the bill, Jack Livingston asks (page 37),

Is there a risk that this coud un-do our attempt to limit the court’s assessment of compliance to dissemination in the 705 context?

Section 705 involves joint applications and concurrent applications:

SEC. 705. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.

    `(a) Joint Applications and Orders- If an acquisition targeting a United States person under section 703 or 704 is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 703(a)(1) or 704(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 703(b) and 704(b), orders under sections 703(c) and 704(c), as appropriate.
    `(b) Concurrent Authorization- If an order authorizing electronic surveillance or physical search has been obtained under section 105 or 304, the Attorney General may authorize, for the effective period of that order, without an order under section 703 or 704, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States.

Particularly given related language about how the Courts can’t “authorize” surveillance because the means may not be legal in other countries, this seems to refer to collection in both the US and overseas. Is this just referring to whether we partner with–say–the UK’s GCHQ on collection (to maximize collection on US persons), but that DOJ doesn’t want to have to show its work because it never minimizes stuff collected by the UK?

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121 replies
  1. klynn says:

    But the other interesting thing is the date: June 2008. The statute of limitations on this stuff is 5 years long. Which means they’re saying that “many” of the claims–and therefore much of the illegal wiretapping–took place on or before June 11, 2003. Which is earlier than you’d think.

    IANAL. Does any evidence of admission change the start clock on SOL?

    • BoxTurtle says:

      The only way the SOL clock is going to get reset in this case is if there is proof of an attempt to plan the crime to take advantage of the SOL. And I suspect there’d have to be actual illegal acts as well. It’s not illegal for a lawyer to tell his client how to maximize the chance of getting the SOL to protect the client.

      Boxturtle (sucks, don’t it?)

      • earlofhuntingdon says:

        Covering up a crime is a separate felony; each act in furtherance of that cover-up restarts the SOL that applies to the cover-up, be it a conspiracy, obstruction, what have you. Presumably, that’s one reason immunity was so desperately sought.

  2. bmaz says:

    I’m interested in this for two reasons. First, if they are speaking of specific claims being barred by statutes of limitation, they must be tracing those claims to dates of actual illegal wiretapping, right? In other words, this seems to be an admission that there were valid claims.

    But the other interesting thing is the date: June 2008. The statute of limitations on this stuff is 5 years long. Which means they’re saying that “many” of the claims–and therefore much of the illegal wiretapping–took place on or before June 11, 2003. Which is earlier than you’d think.

    Ah, but when you assume a five year statute of limitation, you are applying the criminal SOL. They are quite likely, and sure appear to be, talking about the civil SOL, which is generally two years for actions against the Federal government.

  3. klynn says:

    Ah, but when you assume a five year statute of limitation, you are applying the criminal SOL. They are quite likely, and sure appear to be, talking about the civil SOL, which is generally two years for actions against the Federal government.

    Sometimes, I hate that line between civil and criminal. Often the government gets off easy in cases that involve an action that is most likely harmful to society as a whole but are considered civil.

  4. MadDog says:

    Just a drive-by here, but in reading the first (77 page PDF) of the OLC sets of documents, you can see a number of email chains where Bradbury & Co. (for example, see page 15) are working with House and Senate staffers to setup HPSCI and SSCI reviews of the TSP orders after their submission to FISC (those submissions were circa Jan. 10 2007).

    While Bradbury & Co. are willing to provide “the classified Jan l0 orders, application, memoranda of law, and supporting exhibits”, note what Bradbury & Co. are unwilling to ever supply: “the declarations”.

    The reason I attach such great importance to this is all of the other documentation is fookin’ window dressing (i.e. memoranda of law that Junya as CinC can order fookin’ anything because he’s…well…he’s our leader!, copies of the AUMF, etc.).

    It is the actual declarations to the FISC that describe exactly (or not *g*) what the Bush/Cheney regime was doing.

    So by not allowing HPSCI and SSCI to review the actual declarations, those Congressional bodies still didn’t know what the Bush/Cheney regime was exactly doing.

    Could be warrantlessly surveilling you, could be warrantlessly surveilling me. Could be warrantlessly surveilling every-fookin’-body!

    And without those declarations, we and our Congresscritters aren’t gonna know, are we?

  5. Mary says:

    bmaz, is that the sol for a civil action not involving gov (like against telecoms) as well?

    Random, off the cuff, not necessarily well-grounded thoughts:

    … a legal question we may need to revisit for reasons best discussed in a classified setting and unrelated to FISA modernization

    Remember how all the talk was that the reason legislation had to be changed was to modernize FISA bc of the newer technology? That “old-fashioned” FISA was inadvertently interfering with legitimate, legal, constitutional, acceptable, begnin, adequately supervised and restrained surveillance? And isn’t that what Congress in general (not small select groups briefings involving intel and judiciary) was being told?

    But now they are saying the reason they want a language change to give statutory FISA protection via specific language acknowledging that acquisition of stored electronic communications is a “search” AND is authorized by the “new FISA” – anyway, that reason is “unrelated to FISA modernization” and it’s a pesky “legal” reason.

    Was Congress in general briefed on that “legal reason” for the change that had nothing to do with FISA modernization? Sounds like notsomuch – if it was only going to be discussed in a classified setting. Excuse me, but once again, why is it that “law” is too secret to discuss except in a classified setting – unless you want to cover up breaking it?

    Had, for example, the FISCt, once “the program” got put before them, ruled perhaps that the acquisition of those communications was a search and with respect to US persons implicated additional protections and if so, were lawyers at DOJ seeking language change not for modernization, but to insulate and protect for prior bad acts?

    In any event, it makes me nuts to have them say there is a “legal reason” they need changes to the language, but it, i.e., the “law” they want to impact with the language change, can only be discussed with tiny groups in classified settings. The law isn’t so god damned “private”

  6. Jim White says:

    From ODNI81-4, page 26 of 66, an email from Ben Powell (Consel to DNI) to Jack Livingston, counsel to SSCI on January 30, 2008:

    Jack — I would try for some short period of iminent attack if possible
    — Congress was out of session in August when “the system was blinking red” in August 2001. Suppose everyone had shared info and we had launched a massive hunt for the sept 11 team that we now knew were somewhere in the US. And you know what would be a key way locate them (will not say anything more on this system).

    He then goes on to explain how the very act of calling Congress into session to get authorization for the search would have tipped off al Qaeda “to exactly the search that is being conducted for them”.

    This one really makes my head swim. It still makes me think there is one more mode of data collection that we don’t know about. On one hand, I suppose Powell could be arguing that the mere fact of convening Congress tips off al Qaeda that there is “a search”, but his language here really ties it to “exactly the search”. Can somebody walk me through this one?

    • Mary says:

      And he really kind of skips over this part, doesn’t he?

      Suppose everyone had shared info

      Um, if the President is off cutting brush and saying “you’ve done your cya” and Condi is shoe shopping, isn’t that kind of like point in the Far Side comic, on the board of equations, where someone sticks in, “then a miracle happens?”

      If information had been shared in an acceptable fashion, they wouldn’t have had to bring Congress into session for new authority. It’s not that they didn’t have the tools, its that they didn’t have the craftsmen.

      • Peterr says:

        As one with degrees in both math and theology, that’s one of my favorite cartoons.

        And your last line nails it. From day one of the Bush administration they acted as if Congress was an obstacle rather than a co-equal partner in governing, and then when the Executive branch actually needed a partner, they were SOL.

    • Hmmm says:

      Jim White, I think you may have found something big here that I’m shocked they failed to redact.

      From ODNI81-4, page 26 of 66, an email from Ben Powell (Consel to DNI) to Jack Livingston, counsel to SSCI on January 30, 2008:

      Jack — I would try for some short period of iminent attack if possible
      – Congress was out of session in August when “the system was blinking red” in August 2001. Suppose everyone had shared info and we had launched a massive hunt for the sept 11 team that we now knew were somewhere in the US. And you know what would be a key way locate them (will not say anything more on this system).

      He then goes on to explain how the very act of calling Congress into session to get authorization for the search would have tipped off al Qaeda “to exactly the search that is being conducted for them”.

      This one really makes my head swim. It still makes me think there is one more mode of data collection that we don’t know about.

      Now, there may be alternate explanations, but this sounds to me highly consistent with the scanning of telephone signals for what used to be called voiceprint analysis, to recognize and flag when a sought individual is on the phone somewhere/anywhere. That analysis could happen either in realtime, or afterwards if the conversation is recorded and stored. Because the two phone numbers (caller/receiver) uniquely place the parties, this effectively locates the sought person at the time of the call, which is good for intel purposes, and may help in apprehending if that’s what they decide to do. (Land lines have a known address, modern mobile phones have GPS locators). All you need is a prior recording of the sought person’s voice for the analyzer to match, a boatload of computing power, and either a little bit of storage (if all non-matching calls are not recorded) or a boatload of storage (if all calls are recorded initially and the voiceprint analysis is done later).

      Notably for legal purposes, voiceprint analysis is an automatable process, so you don’t need to have a human analyst actually listen to the call in order for the voiceprint recognizer to spot and flag the call containing the sought person (modulo some false positives that won’t be ruled out until/unless a person actually listens). The whole setup has a boatload of interesting legal issues of exactly the sort anyone would feel comfortable saying arise exactly because the new technology doesn’t fit the techno-world for which the law was created. Could you treat the automatic voiceprint-has-been-matched signal as probable cause to send the call to a human analyst for listening to the call content? What does minimization mean in that kind of context, where all calls are scanned rather than starting with only the lines of suspected parties, how do you exclude parties that should be minimized out? How long could the call recordings be stored permissibly, before and after the voiceprint analysis? Etc. etc. etc.

      The part that seems odd is why would Congress have had to be called into session to greenlight the operation? And since it wasn’t, did they go ahead anyway and have they been running w/o cover of law ever since? Or has this been OK’d under some statue or secret Gang-of-N approval or EO?

      Also: Wasn’t there some loose talk about a miracle technique used in Iraq where they could locate a person they were looking for and then dial in an air (maybe Predator?) strike? That might be achievable by a combo of voice print ID on the phone network and using the phone location’s GPS as the strike coordinates.

      Anyway, I think that’s a potentially key find you got there. EFF guys, might wanna check with some of your in-house tech geeks about this as a possibility.

      • Hmmm says:

        Sorry, should have started out by pointing out that “System blinking red” could mean they had positive voiceprint IDs for many members of the team… but maybe they couldn’t legally listen to the content of the calls at that time.

        • emptywheel says:

          Remember their old canard–they had picked up Hamza and Mhidhar speaking to a safe house in (IIRC) Qatar, but they didn’t track them bc they were in the US.

          So they have at least those two.

        • Hmmm says:

          If you mean how could they have acquired voice recordings for all the other team members, in order to run the voiceprint searches, then that raises some very tricky questions for the IC.

          I feel like “chatter” is a related concept here, but don’t know how. Who monitors chatter and how exactly?

        • person1597 says:

          I feel like “chatter” is a related concept here, but don’t know how. Who monitors chatter and how exactly?

          Communications Assistance for Law Enforcement Act

          The U.S. Congress passed the CALEA to aid law enforcement in its effort to conduct criminal investigations requiring wiretapping of digital telephone networks. The Act obliges telecommunications companies to make it possible for law enforcement agencies to tap any phone conversations carried out over its networks, as well as making call detail records available. The act stipulates that it must not be possible for a person to detect that his or her conversation is being monitored by the respective government agency.

          This act requires “back door” hardware access to all data flow. It enables direct agency-attached monitoring equipment for any network hardware. Any “authorized” snooper can connect to any network at any time. Thanks to congress, hardware designers have been required to provide this bus interface for years.

        • Hmmm says:

          Yeah, I’ve seen some of the mobile phone protocol specs where this is referred to as “lawful intercept”. My question kind of assumes all that infrastructure, and is instead asking how, in the context of the colossal haystack that is all communications being made at any given moment, do the people who track “chatter” know which calls/emails/surveillance point to pay attention to vs. ignore?

          Patent app seems to be someone trying to make money on what happens after the initial “lawful intercept” tap is accessed. Ah, capitalism.

          But that is certainly very interesting circumstantial evidence that there is a product market serving these needs of funneling protected information into data warehouses.

        • person1597 says:

          The user interface would allow the “agent” to create a set of rules which guide the packet sniffers in-situ. How that is set up is grounds for speculation.

          If you were the “customer” you’d want some arrangement of Bayesian filters to compare a database of “flagged elements” to the traffic packet inspection flow, like a spam filter only for relevant data. You’d configure multiple layers of parsing based on region, language, duration, time of day, to and from, and then get into pattern recognition for keywords, phrases and topics. Probably much more. (Like lefty vs. righty based on semantic analysis…) (*g*)

          Hey, it wouldn’t be that hard to implement a gui with a dataflow visualizer using configurable “plug-ins” to create something resembling an interactive interpretive viewer. Think of it as a music visualizer you can steer.

          This ECB could, for instance, be in communication with a Deep Packet Inspection (DPI) node, forming an efficient packet filtration system. Other ECBs can be placed at various points in the network, alleviating network congestion by sorting and filtering different types of raw data packets sent across the network. Additionally, one could incorporate a redundant pair in every data center. Each ECB pair would act as the interface to all other network nodes, and would have separate sets of rules regarding how to disseminate and distribute the packets of raw data that are generated by the closest source nodes.

          It would look alot like a virtual fishing expedition. Just my 3 cents worth.

        • person1597 says:

          CALEA covers voip too.

          This was an issue in ’06

          The Post also notes that among the politicians opposing the FCC’s Internet wiretap plan is Democratic Senator Patrick Leahy of Vermont, who was the chief sponsor of the original CALEA legislation. Leahy claims that extending CALEA to the Internet of today is counter to what Congress intended.

          You’ll notice some familiar names in the link…

          Since the POTS (plain old telephone service) is digitized/packetized then the filters work in the digital domain there too. Monitors can analyze POTS traffic same as voip. They probably have a set of headphones and some glorified radio buttons for the folks in the lunch room.

        • Hmmm says:

          Monitors can analyze POTS traffic same as voip.

          Yes, but that wasn’t the distinction I meant. Not to go too far along this colloquy, but @81 you were positing automated searching on bases including “… language … and then get into pattern recognition for keywords, phrases and topics. Probably much more. (Like lefty vs. righty based on semantic analysis…)”. When the traffic is voice — rather than the text of web/email, and this is the distinction I meant — then automated filtering at that semantic level gets considerably less robust. Gotta turn the sound into text first and that famously introduces semantic errors. You need ears in there.

        • person1597 says:

          I think you are right about the unreliability of DSP wrt voice sourced pattern recognition. I don’t think that would stop them from tool development though. The traffic would have been captured as a sound pattern but not necessarily reduced to text. Sound pattern libraries wouldn’t require that extra step. The mistakes it caused would have been embarrassing and could have been one reason for immunity…

          Remember, system-wide CALEA compliance was set for May 14, 2007. This may have been a negotiating point in the telco position.

          “You want enterprise wide CALEA on time at our expense? We want a firewall against disgruntled terrorists customers…”

          It could have been a deal maker/breaker in order for the feds to get their shiny new toy, regardless of how well it actually worked.

        • Hmmm says:

          From the POV of a working life misspent in commercial technology development, I would look at that as a phenomenon of dishonest companies selling shit that doesn’t work to gullible USG customers. Digital snake oil. Hence my previous comment about the patent looking more like a moneymaking exercise than anything else. Remember all that talk about the Homeland Security economy? That kind of pull — product demand and plentiful available funding — attracts all manner of business crook. Like a magnet.

        • bobschacht says:

          From the POV of a working life misspent in commercial technology development, I would look at that as a phenomenon of dishonest companies selling shit that doesn’t work to gullible USG customers.

          You mean like the “new” FBI computer system?

          Bob in AZ

        • Jim White says:

          I think that in the context of what Powell was saying the “system blinking red” was that they knew “something” was in the works from their monitoring of chatter [this was, of course, pre-DHS booga-booga color scale]. The voice-print concept is very interesting, however. I also think that some other form of electronic data gathering/analysis may be involved as an alternative.

      • Mary says:

        Supposedly there were the 9-10 bin laden intercepts indicating that things were going to happen the next day and the 9-9 intercepts to his stepmother fwiw

  7. bmaz says:

    ATTENTION all Wheel enthusiasts working on this FOIA dump: I just received this from one of my friends at EFF, and, since it is you all doing the heavy lifting, wanted you to know how appreciated your efforts are:

    [bmaz] — We are just thrilled with the work that you and your commentors are doing with the FOIA docs from EFF. It will be so useful for us going forward. Thanks, thanks, thanks!

    What you do here does matter and people do notice. Thank you to one and all.

    • Peterr says:

      I’m waiting to see Marcy, bmaz or one of the commentors here cited in a brief to SCOTUS. (1)

      If they can cite law review articles, surely they can cite a post here.

      _______
      (1) Even a h/t in a footnote would be nice.

  8. perris says:

    I’m interested in this for two reasons. First, if they are speaking of specific claims being barred by statutes of limitation, they must be tracing those claims to dates of actual illegal wiretapping, right? In other words, this seems to be an admission that there were valid claims.

    ianal

    and I know this issue was sort of addressed @1

    but if the government is refusing access to the information that would demonstrate culpability, or statute which is later found to be unconstitutional, then I cannot believe the clock starts until said inforamation does become available

    so long as it’s not available I kind of think the statute of limitations must by default stop running, to be restarted when said prohibitions might be lifted

    but as I said, perris inal

  9. Mary says:

    Just a fast note – I went to the doc dump, clicked on a middle of the list link, OLC communications, and the redacts in just the to and froms and cc’s are bizarre and make no sense in the 3-4 strings I’ve looked at.

    You get an email from Jeremy Bash to Bradbury and “redacted” with a “Hi Steve and Ken” and then, of course, Wainstein (who wouldn’t seem to have much b-6 “privacy interest” in being redacted from emails on the national security topic of the illegal surveillance program he was doing the road sales for) showing up on several cc’s thereafter in the string. You get emails between Bradbury and “A. Johson (Intelligence) where, after both names appear in the to/froms, A. Johson sends and email to Bradbury and Bradbury responds and the “to” is redacted, despite the “hi andy” etc

    It all looks very weird and/or sloppy and or – um, weird. Like maybe there was a drinking game involved during redacts?

    • Jim White says:

      Yeah, it’s pretty random. I’ve been looking carefully to see if they might have missed redacting copies sent to someone who might be in a telco, but so far I only see government types.

      I nearly fell over when I found a Jamil Jaffer who started in DOJ and then went to President’s counsel office. Not to be confused with Jameel Jaffer at ACLU.

      • Mary says:

        I’m wondering a bit on the strings where there is the “Privileged Attorney Work Product Do Not Forward” reference if those aren’t possibly from private counsel somewhere, maybe telecoms. I have only seen a few and those are “might bes” but not enough to say anything too worthwhile yet.

        @22 Got it. I won’t tell [redacted] b-9 ;-)

        • Mary says:

          I’m looking at the string in the second set of OLC docs linked, dated April 19, and I really am trending to think that the emailer who is always redacted and uses the “Privileged Attorney Work Product Do Not Forward” reference is very possibly a telecom counsel.

          Someone rushing off to email Bradbury about DOJ info on a website and Bradbury responding so quickly to explain about the questioned bullet point, which is about carrier immunity (but the emailer isn’t one of McConnell’s crew who have been emailing ack and forth on that) Plus, in the first set of olc docs they are setting up a meeting at DOJ with that emailer (presumably, from type style, work product reference, etc.) and having to explain the process of which entrance to use and how to go through the visitor’s center.

        • ncardozo says:

          Yes, they are telecom counsel. The government has claimed b(3) for the identities of the telecoms, so any time you see a name redacted for b(3), it’s a telecom.

        • emptywheel says:

          Any chance you guys would be interested in going back for attachments, a la that AZ case in which attachments were considered public records? There’s a December 4, 2007 exchange bewteen Jack Livingston and Demers where Livingston first suggested he pick up changes in person, and then Demers ends up scanning the changes and sending it as an email attachment (haven’t found the email yet, but presumably it’s in the dump or should have been). They were very clearly trying to avoid working with the Dems on the committee, so I wonder what they wer e up to.

        • emptywheel says:

          The email where the changes are sent is in that same thread, just a few days later. I’d be mighty interested in what they were trying to hide from the Dems.

        • bmaz says:

          Greetings there ncoardozo, welcome, and I agree with Marcy, it is worth a run at the metadata under the theory in Lake v. City of Phoenix, AZ Supreme Ct. No. CV-09-0036-PR (a unanimous decision by the way).

        • ncardozo says:

          If we can identify attachments that are clearly relevant and haven’t been released, then we’d absolutely consider it. If you find any, let us know!

        • bmaz says:

          I would ask for all of it. If such disclosure is deemed proper, then it is presumptively proper for all electronically created and stored documents.

        • emptywheel says:

          See page 25 of NSD 27. It refers to a scanned PDF w/Demers’ and others’ comments.

          No idea what’s on there–it’s mostly a draft of legislation. I’m mostly interested bc Livingston was going to go to DOJ to get it and/or lurk by the fax machine. So presumably he and Demers didn’t want the Dems to see it.

    • Petrocelli says:

      “It all looks very weird and/or sloppy and or – um, weird. Like maybe there was a drinking game involved during redacts?” – Mary

      *cough* … or perhaps the redactor was getting a blowjob !

      • bmaz says:

        That’s it dammit! You are hereby banned from the Tamron Hall and David Schuster Happy Hour, and probably all of MSNBC. Potty mouth!!

    • MadDog says:

      This is just my guess, but after looking at a number of these documents, I came to the conclusion that they are redacting the email addresses of those folks who are career DOJ and Congressional staffers.

      Folks who are still hanging around the DOJ and Congress.

      Don’t want to be getting spammed, do they? *g*

      Secondly, I bet more than one person was doing the redactions given the quantity of documents.

      And these folks understood the redaction rules a bit differently.

  10. Mary says:

    So – did DOJ prepare a list of lawsuits on this and possible claims and exposures to give to Bond? But it hasn’t been produced? Or am I misreading.

  11. maryo2 says:

    I can’t find that 3) SOL statment that MadDog quotes. I followed the links, but in the June 10 email all I saw was this:

    In response to some of the questions raised by members last night, attached is an outline of how later-filed cases would likely be treated.

    How to treat later-filed cases seems to re-inforce that there was a plan to use SOL to avoid prosecution of certain crimes up to a certain date (“Let’s just wait it out”, nudge nudge wink wink). And that really sounds like obstruction to me.

    That sounds more like a lawyer providing cover than giving legal advice.

    RICO requires two crimes, and obstruction is one of them. If Jose Padilla’s rendition is kidnapping, then that’s two.

    • bmaz says:

      I have to do this about once a month or so, but RICO against the government and its agents is nonsense; it does not apply.

      Yes, they really do and, no, they are not waived simply because the government is lame and obstructive.

      For the life of me, I have never understood why so many people, including many lawyers, always clamor for RICO. It is silly. First off, criminal prosecutions under RICO are very rare and are these days mostly used to break apart enterprises. The United States government is not amenable to being broken up in this manner. Secondly, a Federal governmental agency is not subject to prosecution by the Federal government and cannot be a RICO defendant. So the whole theory of “enterprise” central to a RICO theory is legally absent (not to say that the conduct of the Bushies is not the functional equivalent, but it doesn’t really fit within the legal application). That leaves the individuals, but to convict an individual on a criminal RICO charge, you need to prove at least two separate criminal offenses that are enumerated under the RICO act (and torture is not one of them to the best of my recollection) within the ambit of the alleged criminal “enterprise”. But sentences for RICO offenses are no higher than for the underlying crimes themselves, what do you gain by charging an individual with a count that requires you to prove two or crimes beyond a reasonable doubt when you can simply charge them individually and prove them individually; it would be a lot easier and if one count founders, you still have the other. Bottom line is there is nothing to be gained from RICO application to the Bush crimes, even were it technically feasible. Lastly, I am not aware of any Supreme Court decision on the subject, but I find it beyond credulity that they would approve of criminal RICO prosecution of Individual Federal government employees for acts that, even if they are criminal, were committed in the course and scope of their governmental function.

      RICO here is a dead horse, people should quit flogging it.

      • person1597 says:

        Thanks for clearing that up. Crankiness is emotionally satisfying but not always the best remedy.

        Course correction received, re-tasking acknowledged.

  12. WilliamOckham says:

    For MadDog or anybody else who wants to do a little sleuthing. NSD, part 1. pg 6

    Printed from Andrew Tannenbaum’s Outlook Acct, but he’s not on any of the addressee lines. Tannenbaum was an attorney for DOJ in Hepting. One of the addresses in the email chain is [email protected]. Somebody could probably figure out who he/she is.

    They blacked out all the addressees in the first message in that chain. There’s got to be a telecom company or two on that.

    Anyway, I’ll come back to this if I have time later this evening…

    • MadDog says:

      I saw that yesterday and was going to mention it, but I got over-focused on the OLC material.

      And yes, what does [email protected], a person tied to a political organization have to do with FISA Retroactive Immunity?

      …There’s got to be a telecom company or two on that.

      Twas my opinion also!

      • MadDog says:

        One additional comment is that I remember last night seeing David Kris’s name in one of the documents (perhaps in that same NSD 1 – 75 page PDF).

        He was providing the DOJ folks with suggested FISA update legislation language.

        At that time, David Kris was a counsel for Time/Warner. Yes, that same Time/Warner that owns AOL, and of course, provides AOL email.

        Far be it from me to suggest any impropriety on his part, but appearances may suggest themselves.

        And oh btw, this is the same David Kris who now heads the Obama Administration’s DOJ National Security Division.

        Yes, that NSD which is the focal point for all things FISA.

        • worldwidehappiness says:

          MadDog wrote:

          At that time, David Kris was a counsel for Time/Warner. Yes, that same Time/Warner that owns AOL, and of course, provides AOL email. …this is the same David Kris who now heads the Obama Administration’s DOJ National Security Division. Yes, that NSD which is the focal point for all things FISA.

          That’s blatantly corrupt!

        • MadDog says:

          From page 7 of the National Security Division, part 26 85 page PDF of an email from Mike Davidson SSCI staff on Nov. 13, 2007:

          …At some point, it would be helpful for us to ask David Kris to come by to discuss his suggestions. That could be for a part of the Tuesday, November 27, discussíon, or another time…

          (My Bold)

    • Peterr says:

      I am also seeing names at the top (i.e., the person from whose account the email was printed) that don’t appear on the to/from lines.

      For instance, OLC pt 1, pdf p 12. This is an email from Bradbury to Jeremy Bash, cc to Chris Donesa, with no redactions in the address fields, yet the page header says it was from the account of “Ferris, Bette.”

      Can you say “BCC:”? Sure you can.

      Does EFF get access to the electronic versions of these messages, to see any bcc names?

      • Jim White says:

        Some of the folks who did the printing are paralegals. I searched a few of the more unique names that were in print headers but not To or From and found they were paralegals in DOJ.

      • MadDog says:

        I’m will to bet that “Farris, Bette.” was Bradbury’s executive assistant (secretary).

        With email products like Microsoft’s Outlook, you can set it up to “delegate” access to a person’s email account. Tis quite common in corporate environments.

        And secondly, though I guess Bradbury ensured that many of his emails were deleted, it may be the case that his executive assistant was less thorough in doing so.

        From a number of those “Farris, Bette.” emails, it looks like her copy was the one printed out for the FOIA response.

        • Peterr says:

          If Maddog is right about people like Bette Farris and her access to Bradbury’s email account, that’s no big deal. But if there are names here that don’t line up, I’d say you’ve got cause to go back to the judge and ask for access to the electronic originals. (Or, failing that, to ask for someone independent to access the electronic copies to see about bcc’s.)

    • maryo2 says:

      There are two (at least) email systems being used because one shows date and time in this format:
      Sent: Tue Apr 22 11:17:38 2008 (Seems to be usdoj.gov)

      While the other date and time uses this format:
      Sent: Tuesday, April 22, 2008 11:02 AM (I can’t tell who this is.)

      Emails from John Demer show both formats in different places, and he CCs himself so that might be to his other email adress.

  13. emptywheel says:

    One point about that Jackson email. It appears to also have been sent to Louis Tucker who was at the time the minority staff director (that is, Republican) on SSCI.

    I find that interesting because he’s not one of the people who’s on a lot of the weedy debate about the bill.

  14. MadDog says:

    From page 40 of the National Security Division, part 25 55 page PDF regarding an email Jeremy Bash [redacted]mail.house.gov sent on June 13, 2008:

    One follow up item from our meeting. Item 1 on our list (language on the Title II certifcation requirement), I have talked to the carrier in question and they are fine with “the” (vice “an”) on p. 87 line 7 and 23.

    (My Bold)

    An explicit acknowledgement documenting Telco participation in constructing their own “Get Out of Jail Free” retroactive immunity legislation.

    Sure wish they’d have named names.

  15. person1597 says:

    Enterprise Collection Bus
    United States Patent Application 20090207835

    Systems and methods are presented to collect raw data from a plurality of servers and nodes on a network. A Distributed Enterprise Collection Bus (DECB) architecture is employed at various points on a network. The DECB comprises a collector unit that is protocol agnostic, an orchestration unit, a rule database, a filtering unit, and a distribution unit. Packets of raw data such as Call Detail Records (CDRs) generated by switching centers are received, and distributed to relevant destinations. Relevant destinations include data warehouses, mediation, analytics, etc. The goal is to alleviate collection and filtration duties of the source and destination.

    Lots more info in the patent app. if you are interested in the tech.

    • person1597 says:

      Rules? What rules…

      An example of such a rule is that every Call Data Record (CDR) from every Mobile Switching Center (MSC) be delivered to a wiretap database as mandated by the Communications Assistance for Law Enforcement Act (CALEA). Thus, every CDR will be delivered to its appropriate destination, as well as to a CALEA data warehouse.

      (From text of patent app.)

  16. Mary says:

    @45 – so all the B-3s are telecoms? That’s helpful.

    BTW – no answer needed on this and it doesn’t tie to the doc dump, but since there have been stories about both Lamberth initially and Kollar-Kotelly, later, in their roles as Chief Judge at FISCt, responding to being briefed on the program by establishing firewalls to keep what they thought was likely unconstitutionally acquired information out of even their uber secret court – – I’ve always wondered during the “telecom good faith” arguments whether the telecoms were advised of the FISCt firewalls and Chief Judge positions (in which case they couldn’t have had good faith) or whether DOJ, upon being advised by the successive Chief Judges, just never told anyone – it’s clients or the telecoms, about court’s adverse take on their program (in which case I have to think someone breached a duty somewhere) fwiw

    On the OLC docs – random stuff

    * part 1 – so the “I’m inviting myself and Vito” emails on Jan 24, 07 (pp 4/77) where the From is redacted with a B-2 & B-3 claim would be a telecom counsel, deciding to attend the DOJ/Cong briefing and apparently able to commission NSA Gen Counsel to come with them. More interesting is that the original email in the string, from House Com Counsel Jeremy Bash, includes the redacted “b-3” cc from the beginning, so you have to wonder who came up with the original circulation lists for Bash (or if he came up with them himself) and why telecom counsel were being included in his emails to OLC. That reads like it was the House Maj (D) that decided to bring in the telecom counsel to the strings

    * part 1 – I understand the points that MadDog made on the redacts, but sometimes they are so inconsistent even within a string that I wonder how you are supposed to have confidence in them, when on their face there are so many problems. For example, there is a string in the negotiations for turnover where the same proposal is cut/paste or forwarded several times in the string and the reference to documents being retained in the HPSCI SClF is redacted in parts of the string and appears in other parts (it looks like they use b-3 when they do redact it). Is anyone certifying these exemptions, bc they don’t look too professionally done.

    *part 1, 6/77, initial string email from Steve Bradbury to Andy Johnson, Bradbury asks Johson to please call to discuss, then a whole sentence is redacted, then there’s a reference to “or send a reply email” with contact info. There’s no exemption next to the redaction, but underneath the end of the email there’s a b-6. I think it would be good to have them clarify they are claiming b-6 for the full sentence redaction and maybe explain why no words of the sentence can be included without violating privacy – that strikes me as odd.

    *part 1, 14/77 exchange involving Bash (for House Committee) asking for a read only set of the FISCt orders, applications, memoranda of law, exhibits (other than declarations) with no redactions and Bradbury responds that “I know that there are certiain numbers and specific identifiers that the operational folks view as so sensìtive that they would also want to redact it fiom the read-only set” I defer to the tech guys on that, but it caught my eye (esp with Bash pretty much saying, “nonsense” in response) Would those kinds of things indicate which telecoms were providing assistance? Whether proprietary telecom software was being used? etc.

    *Part 1, 27 et seq, Bradbury sends the US v Adams opinion with high priority to Livingston.

    Part 1, pp 55-57, email string from 2-12-07, from a telecom to set up the meeting to discuss “some history” with Bradbury and Potenza. A suspicious person might wonder if that sounds like players getting together to get their stories straight. And right after that the “this is a live fire exercise” email swaps with McConnell’s office on getting carrier liability taken care of crop up.

    * Part 2 pp 5/127, Livingston contacts John Eisenberg, with the re “Carrier Liability” and says Kit Bond is going to sponsor the carrier [anti]liability provisions. “John mentioned that DOJ might be preparing fact sheets on the cunent pending cases, e.g., how many damages sought, cost of legislation,etc. Could I please get copies of what you come up with?” This is followed on pp 6/127 with an email where Eisenberg supposedly sends it to Abegg and Livingston with a cc to Mike Allen, but the doc itself is not attached (althought apparently Livingston thought it was good stuff. Are they claiming that as work product? For whom? Bond?

    * part 2, 12/127 Bradbury sends a memo to a B-3 redact, subject “your request” that describes the “topic” of the “emergency that existed in the fall of 2001” with military actions taken, continuing threat, etc. A suspicious person might think there’s not much reason for Bradbury to be enlightening someone about 9/11 actions taken under a b-3 redaction unless maybe he were trying to use OLC to prep a witness, but I’m sure it’s not that.

    * part 2, 14/127 Tucker and redacted were apparently coordinating on 4-9-07 some kind of briefing for members on 4-10 by Bradbury et al, where Bradbury et al were going to present 1. areas that are classified and members need to stây away from 2. your recommendations of sensitive areas that are not necessarily classified but are best left for clsed session because discussion in those areas may expose sensitive equities emph added. ?? So Bradbury was going to be giving Congress his recommendations (as?? on behalf of OLC? is it OLC’s place to recommend what kind of “sensitive equities” members should or shouldn’t question outside of closed sessions? I don’t get this. It certainly seems like DOJ should cough up more on this – what was DOJ telling members of Congress they couldn’t discuss openly bc, even though not classified, “sensitive equities” would be exposed. Excuse me, but since Bond and others were making all the “good faith, good faith” PUBLIC equities arguments, what the heck was so sensitive that it might unbalance those “equities” to mention anything that might “expose” them? How do you use or claim an equity, like good faith, without exposing all the equitable considerations (like clean hands or lack thereof for example?) I’m at sea on those emails.

    *part 2, pp17-20, April 19, 2007 – a Fact Sheet on the proposed legislation on the DOJ website spurs a B-3 contact and the proposed legislation is explained by Bradbury to the redacted b-3 as accomplishing a couple of things going forward -first giving telecoms immunity if they comply with Exec Branch requests that are made within the law as being written, and secondly, since there are going to “fall outside” the new statutory definition of Electronic Surveillance, then the telecoms are going to be able by the AG to be compelled to provide assistance for things that FISA doesn’t cover.

    * part 3-2, pp2, Jan 16, 2007 Livingston sent email from Feinstein staffer Davidson on her proposed amendment which had the “… core idea that there ought to be a statutory good faith test that is applied by a court.” Livingston forwards it to Eisenberg and Demers with this, “FYI I told him that Senator Bond çouldn’t support this version because it still allows a court to second guess the good faith determination made by the SSCI.” So apparently DOJ is supporting the position that legally, if a person’s communications are illegally and/or unconstituionally searched and seized, this is ok as long as – not congress, but a small subgroup of Congress, the SSCI, decides – without any advocacy proceeding for the opposing view and without due process for those whose communications were searched, that the searcher’s acted in good faith. If that really is the intent, bill of attainder much? Bond wanting to set up a group of people who can be violated by the Executive under statute and Constitution as long as Congressm in a non-juidicialm non-advocay proceeding with no due process, decides that the Executive acted in “good faith” to violate some under the statute and Constitution, although other violations – for example by those not deemed by Congress to be acting in “good faith” remain illegal under the statute? Bond and his DOJ cc-ers have an intersting take on this – that they can be jury on good faith issues and pass legislation targeted to allow the violation by the Executive against a carved out subset of some citizens as long as done in Congressionally determined good faith, while extending statutory protection to other citizens not involved in the Executive’s “good faith” violations.

    Whew.

    * the last page of 4-2 says it is page 1 of 2, but there is no page 2.

    • MadDog says:

      …*part 1, 14/77 exchange involving Bash (for House Committee) asking for a read only set of the FISCt orders, applications, memoranda of law, exhibits (other than declarations) with no redactions and Bradbury responds that “I know that there are certain numbers and specific identifiers that the operational folks view as so sensìtive that they would also want to redact it from the read-only set” I defer to the tech guys on that, but it caught my eye (esp with Bash pretty much saying, “nonsense” in response) Would those kinds of things indicate which telecoms were providing assistance? Whether proprietary telecom software was being used? etc…

      When I read that last night, I had a different take on it (perhaps even a double-take *g*).

      I took the words “certain numbers and specific identifiers” to be certain phone numbers or IP addresses they were monitoring and in the case of “specific identifiers”, certain triggers (words, phrases, email account names, websites, etc.) that were being used in the driftnet surveillance on that Narus capture system.

      Stuff that in the government’s mind was of little value to Congresscritters and their staff in evaluating the TSP, but that if got out would alert targets.

      • Mary says:

        I can see that too, except that I would expect the phone numbers etc to be in the applications. My rough understanding, not having followed this stuff too much, is that the declarations at issue are the ones that were given to the FISCt in connection with the effort to get the court to bring “the program” within FISCt oversight and orders. I could be wrong on that, but I’m thinking the declarations were the broad picture explanations to the court of how the program was going to be operating (and why it was needed and what protections were involved).

        All spec by an old, complete non-techie who doesn’t understand the tech end, but I got the “dancing lawyer” feel from Bradbury’s response. It made me wonder if the real issue was not something like confidentiality agreements between gov and telecoms – where maybe in connection with lots of $$ and getting access to the switches, the telecoms let gov use proprietary software or some other intellectual or protected tech-type property. If so, there would have been some standard confidentiality protections which may have been worked out in connection with the secret declarations.

        It’s nothing but a feeling and my gut doesn’t have a big accuracy record, but I thought his response was fishy and it prompted that thought process for me.

    • ncardozo says:

      So, as a preliminary matter, not all b(3) redactions are telecom identities, but (we think) all telecom identities are b(3) redactions. So, with that caveat, I’ll try to clarify some specifics:

      * part 1 – so the “I’m inviting myself and Vito” emails on Jan 24, 07 (pp 4/77)
      This isn’t a telecom. It’s an NSA employee. If you check out the Vaughn at the top of page two (http://www.eff.org/files/filenode/foia_C0705278/20090512_Vaughn_OLC.pdf), they’re claiming b(3) sec. 6, not sources and methods, which is what they’re claiming for telecom identities. Section 6 refers to the National Security Act of 1959, which protects the names and titles of employees of the NSA. It makes sense that the NSA would have to forward clearances to the committee, because you had to get “read into” the TSP.

      *part 1, 6/77, initial string email from Steve Bradbury to Andy Johnson…
      My guess is that it’s where he’s going to be that weekend. b(6) is privacy, so maybe it talks about his vacation home or something like that. Not a biggie.

      *part 1, 14/77 exchange involving Bash (for House Committee)
      Wow!

      * Part 2 pp 5/127, Livingston contacts John Eisenberg, with the re “Carrier Liability”
      So this is an interesting issue. We’ll know more on Monday when the government files its opening brief in the 9th Cir. The issue is twofold. First, it really looks like they haven’t provided all the attachments. They certainly provided some but it looks like others are entirely gone. Second, they’ve said that they’re not pursuing the appeal on b(5) withheld documents between the agencies and congress (hence this release). But there are tons and tons of b(5) redactions here. So what’s the deal? If they’re not pursuing the appeal on this category of docs, then they can’t claim work product for such a memo. We’ll know more on Monday.

      * part 2, 12/127 Bradbury sends a memo to a B-3 redact
      Nice catch. Yeah, this is almost certainly a telecom. You can see that it’s a b(3) redaction, with b(6) crossed out. At one point they claimed that the specific people at the telecoms were protected by both b(3) and b(6), coextensively. Now they seem to be claiming only b(3) for telecoms. Interesting…

      *part 2, pp17-20, April 19, 2007 – a Fact Sheet on the proposed legislation on the DOJ website
      Looking at page 12 of the Vaughn, yep, it’s a telecom.

      * the last page of 4-2 says it is page 1 of 2, but there is no page 2.
      I’ll check in the paper copy tomorrow to see if we just missed a scan, but I don’t think so. (I scanned the OLC docs, and I’m pretty sure I didn’t mess up :)

      Anyway, thanks for your analysis, Mary and everyone else. We (EFF lawyers) actually do read your comments and are definitely appreciative of your work here. We will do what we can to help you all out. Keep in touch!

      Nate

      • Mary says:

        I didn’t realize you went to all this trouble to respond – that was very nice. I’m still wondering about the non-classified “sensitive equities” briefing and whether there’s a way to get more produced on that. OLC isn’t the lawyer for Congress and if Bradbury was giving the committee “his” recommendations on non-classified “sensitive equities” that it would be politically advantageous to not discuss openly, I have to wonder if there isn’t a way to get that info.

        I did figure out late in the game (when I realized b-3 was being used for the HPSCI SCIF redact) that I’d oversimplified. Good luck.

    • emptywheel says:

      Really interesting suggestioin about the firewall. It would make FISC the LAST place they’d want immunity to be weighed fairly. Maybe DiFi was being trickier than we knew when she advocated immunity there.

      • Mary says:

        I always felt, watching her in some of the hearings, that her materials (although not her delivery, or even awareness of her own material) indicated she had really super staff.

      • Mary says:

        I can imagine it being so many things. I probably shouldn’t read too much into the word choice (equities) and the choice of the OLC lawyer, of all guys, to make this briefing (if it was a briefing on politically sensitive matters, it seems you’d want someone like Gonzales who had familiarity from the git-go with the program and was in a policy slot to make that briefing – although he wasn’t Congress’ favorite) So I have to wonder if they are talking about making the “equitable” case for the telecoms “good faith” and mentioning things they wanted Congress to consider on that front, but not ask openly about (like potential damages as Hmmm suggested, or possibly even things like the fact that telecoms may have been actively misled by members of the WH, OVP, NSA or DOJ at times or an indemnification agreement as bmaz has mentioned, or maybe even things like the fact that there are overseas laws that *our* multinational telecoms violated and for which they might face more penalties, charges, etc. if details of the program came out in court, etc)

        I dunno- but I’d like to know more. I’ve always thought the foreign law aspects get short shrift. What if your domestic law on cooperation with the US Exec branch to provide them with “all” foreign to foreign calls they want, without warrant and without probale cause to believe they are listening in on terrorists, etc., but just bc they are foreign to foreign – were to run afoul of laws in the country where the “foreigners” are located that, for example, requires that telecoms have a court order froma court somewhere (like the SWIFT issue) to make the info available?

        I think they want to split that baby. They want to argue that they are “seizing” the communications in the US (using telecom hardware/software access) so that the telecoms can argue they seizure was all in the US and they had to comply (the SWIFT processing center moved from the US didn’t it – or is process of doing that) while at the same time, for purposes of the 4th amendment, gov wants to argue that these are “foreign” calls being intercepted, so the gov isn’t acting “within” the US and isn’t subject to the 4th.

        OTOH – I’m way too lo tech to have a hard and fast opinion on this.

        • lawordisorder says:

          Lets just for the sak of argument say that its not uncommon to turn on friends ad say can you help me out on this one e.i its not illegal unless im on us soil to “spy” on a us citizen and afterwards turn this over to us agencies……

          Just my five cents worth

        • Mary says:

          Oh sure and I’m sure they have done that and US court have been ok with the US being a recipient of info obtained in a foreign country by foreign operatives. But the illegal, unconstitutional surveillance program didn’t involve asking Britain or Gambia or Macedonia to help out (although I’m sure others did) It involved NSA operatives and telecom operatives sitting here in the US directly seizing and searching US citizen info abroad and at home, all with no warrant as required by the Constitution and all without following FISA requirements for that kind of action when undertaken by the US gov against US citizens.

        • Hmmm says:

          So you’re saying non-USG entities/contractors have been spying on US citizens inside the US, from a non-US location, and then turning the fruits over to the USG? And they do it this way specifically in order to make it (nominally) not illegal? Under US law or under the other country’s/countries’ law?

  17. Mary says:

    I have to go do horse stuff and it’s just as well. Pulling up NSD part 1, I’m already confused on pp 1 and 2. How is b-5, deliberative process exemption, applicable to redacting the name of the must-be telecom counsel conferring with Demers on how DOJ is going to limit telecom liability? What is deliberative about the name? And no other exemption is noted (b-3).

    Have fun.

    • ncardozo says:

      Well, there’s a handwritten “3” there…

      Anyway, one of the other EFF lawyers pointed out a very interesting possibility. NSD part 1, page 1 isn’t the best example, but it’ll work. The From that’s totally redacted looks to us like a telecom. The convention that Outlook uses for users outside the domain seems to be “Name, Name [mailto:[email protected]]” Now, not on page 1, but on other pages, e.g. page 28, you can see the structure of the address. Going through the docs very carefully, it’s not inconceivable that we could deduce something about the domain name. See the Vaughn for descriptions of the emails: http://www.eff.org/files/filenode/foia_C0705278/20091006_Vaughn_NSD.pdf

      Nate

      • WilliamOckham says:

        Nate,

        There are a lot of other things you can deduce about an email based on the printed form. For example, take a look at John Demers emails in NSD 25. Take note of the following things:

        1. Where is the page number (bottom center, upper right, etc.)?
        2. Is the left margin of the email text the same as the margin of the email header lines?
        3. Is the subject line of the email printed in the page header?
        4. Is the date the email was printed in the page footer?
        5. What is the format of the datetime stamp?
        6. How thick is the line under the person’s name at the top of the page?

        All of these things (and a few others) are tied to the printing template that was used to print the email. Almost no one ever changes these from the defaults, so you can make a very good guess as to what version of Outlook was used to print an email. You can also tell when stuff was forwarded from a Blackberry, etc.

        This information can be used to figure out which emails were printed when (with some precision if you have enough emails from people in the same office). I’m totally swamped at the moment with work and personal stuff, but I’d be more than happy to help you guys weed through this stuff. I’ll have to dig out the guide I put together when I was obsessing over the WH email mess.

        • ncardozo says:

          WilliamOckham,

          Any help you could spare would be awesome. We’ll be pretty busy next week, but if you want to email us, that would be great!

          Nate

  18. Hmmm says:

    *part 1, 14/77 exchange involving Bash (for House Committee) asking for a read only set of the FISCt orders, applications, memoranda of law, exhibits (other than declarations) with no redactions and Bradbury responds that “I know that there are certiain numbers and specific identifiers that the operational folks view as so sensìtive that they would also want to redact it fiom the read-only set” I defer to the tech guys on that, but it caught my eye (esp with Bash pretty much saying, “nonsense” in response) Would those kinds of things indicate which telecoms were providing assistance? Whether proprietary telecom software was being used? etc.

    Could be things like sheer volume (megabytes vs. terabytes or more) of intercepts, or names of switching centers or undersea cable terminations, or I guess even total potential liability figures, any of which would be a methods clue.

    …sensitive equities…

    Huh. Using the word “equity” in a different sense, makes me wonder: does USG secretly hold significant ownership stakes in these telecoms? Are they using board seats to influence their cooperation? Remember there is an EO that lets them cook the books they show the SEC to keep the secret ops secret.

    Bond and his DOJ cc-ers have an intersting take on this – that they can be jury on good faith issues and pass legislation targeted to allow the violation by the Executive against a carved out subset of some citizens as long as done in Congressionally determined good faith, while extending statutory protection to other citizens not involved in the Executive’s “good faith” violations.

    In other words, if Articles 1 + 2 agree, then Article 3’s outvoted. /s

  19. MadDog says:

    Ok, the latest NSD Vaughn Index (18 page PDF) dated October 6, 2009 lists two categories of material; Part 1 material that is withheld in its entirety and Part 2 material where some portions of the material is withheld.

    A couple comments:

    Page 17 lists a Part 2 one page document dated 5/14/08 thusly:

    E-mails between NSD and a telecom – identify a telecom and discuss edits to FISA amendments

    Anybody locate this yet? I’ve jumped back and forth between a number of the NSD documents, but no luck locating it as of yet.

    Secondly, Page 15 lists a number of Part 1 documents (documents that are totally withheld) thusly:

    …E-mail from NSD to CIV, OLP and ODAG forwarding an e-mail from a telecom with a redline version of one section of a FISA amendment draft attached…(MD Note: 5 pages)

    …E-mail from NSD to CIV forwarding e-mails from WHO and a telecom with
    redline versions of certain portions of a Senate bill…(MD Note: 21 pages)

    …E-mail from a telecom to NSD discussing technical edits to one section of a FISA amendment…(MD Note: 1 page)

    …Six e-mails between a telecom, OAG and NSD discussing and circulating an attached redline version of FISA amendments…(MD Note: 44 pages)

    …E-mails between a telecom, NSD and OAG discussing standards of review…(MD Note: 1 page)

    All of these totally withheld documents are withheld using the Exemptions of 3 & 5 – National Security Act, deliberative process privilege, and attorney work product.

    My questions regarding the use of these exemptions are as follows:

    1. How can a Telco’s emails be withheld in their entirety due to “deliberative process privilege”? The Telcos are not part of the Executive branch, hence no such privilege can attach.

    2. How can a Telco’s emails be withheld in their entirety due to “attorney work product”? Again, the Telcos not part of the Executive branch, hence no such privilege can attach.

    3. How can a Telco’s emails be withheld in their entirety due to the “National Security Act”? Any and all parts of Telcos’ emails that discuss various parts of proposed FISA update legislation, a piece of public legislation, cannot be deemed secrets.

    Any Legal Eagle here care to clue me in? *g*

    • ncardozo says:

      *Page 17 lists a Part 2 one page document dated 5/14/08 thusly: E-mails between NSD and a telecom – identify a telecom and discuss edits to FISA amendments. Anybody locate this yet? I’ve jumped back and forth between a number of the NSD documents, but no luck locating it as of yet.
      –NSD01 page 28

      *Secondly, Page 15 lists a number of Part 1 documents (documents that are totally withheld) … All of these totally withheld documents are withheld using the Exemptions of 3 & 5 – National Security Act, deliberative process privilege, and attorney work product.
      –This was before they got the adverse ruling from Judge White. They were claiming that communications with the telecoms were inter- or intra-agency. They lost this argument and have not appealed. The release that occurred this week is entirely made up of material that the Vaughn indicates was withheld in its entirety.

      Nate

    • emptywheel says:

      RE work product, remember that DOJ have intervened in the suits, so they were effectively working on defense in tandem with the telecoms.

      And if they were talking about strategies for their defense, then I guess I can understand the rest–kind of.

      That’s the problem, of course, when you give immunity for something everyone knows was a crime.

  20. bobschacht says:

    Breaking news:

    News Alert
    11:19 PM EST Thursday, November 12, 2009

    White House Counsel Craig to end embattled tenure

    White House Counsel Gregory B. Craig is expected to announce his departure as early as Friday, people familiar with the situation said, ending an embattled tenure in which he struggled to lead the closure of the Guantanamo Bay detention facility.

    For more information, visit washingtonpost.com

    So did Rahm Emmanuel force him out? Is this on balance good for progressive defenders of the Constitution, or not? It seems like without Dawn Johnsen in place at DOJ, many decisions were being made in the WH (by Greg Craig’s team?)
    Or will this not matter, because the LARGE staff of WH lawyers is now up to speed, trained by Craig et al?

    Bob in AZ

      • watercarrier4diogenes says:

        Here’s a dKos commenter on that:

        Hell, Rove will hire him as his lawyer…
        Craig would be privy to all internal discussions on Bush, Cheney, Rove et al. Obama Administration better find him a judgeship somewhere to keep him from the darkside.

      • Hmmm says:

        Craig declined to comment and hang up when reached by CNN late Thursday evening.

        Bauer is the husband of Anita Dunn, the outgoing White House communications director. Dunn, who recently led a so-called “war” on Fox News, announced earlier this week that she is leaving her White House post, a long-anticipated move that was not connected to the media battle.

        That’s weird. “So how was your week, Honey? …oh, wait.”

    • earlofhuntingdon says:

      The WaPoop’s source blames Craig’s “embattled tenure” on Gitmo, not disputes among White House advisers over how to follow through on the promise to close it, mind, simply on Craig’s “handling” of the issue. Right.

      Moreover, an already closed shop, the White House just battened down the hatches and shutters. From the same WaPoop article:

      Craig will be replaced by Bob Bauer, a prominent Democratic lawyer who is Obama’s personal attorney.

      Obama’s personal lawyer will now command his White House Counsel’s staff? Why does that remind me of the DoJ operating like Bush and now Obama’s criminal defense counsel when it should be managing the people’s legal business, such as enforcing civil rights and antitrust laws, and ferreting out corruption at Main Justice and among US Attorneys.

  21. watercarrier4diogenes says:

    OT from CNN’s PoliticalTicker blog:

    Tokyo (CNN) – In the first major shakeup among President Barack Obama’s senior staff, White House Counsel Greg Craig is being pushed out in favor of veteran Democratic lawyer Bob Bauer because of a dispute over plans to close the U.S. military prison in Cuba, CNN has learned.

  22. readerOfTeaLeaves says:

    Late thread datapoint, re: “telecomm”.
    Get a load of the Guardian’s report about how the US taxpayers help support the Taliban in Afghanistan.

    The word, “telecomm” comes up:

    The Popal brothers control the huge Watan Group in Afghanistan, a consortium engaged in telecommunications, logistics and, most important, security. Watan Risk Management, the Popals’ private military arm, is one of the few dozen private security companies in Afghanistan [its senior personnel are ex-British army, many of them from Special Services]. One of Watan’s enterprises, key to the war effort, is protecting convoys of Afghan trucks heading from Kabul to Kandahar, carrying American supplies.

    Welcome to the wartime contracting bazaar in Afghanistan. It is a virtual carnival of improbable characters and shady connections, with former CIA officials and ex–military officers joining hands with former Taliban and mujahideen to collect US government funds in the name of the war effort.

    … It is an accepted fact of the military logistics operation in Afghanistan that the US government funds the very forces American troops are fighting. And it is a deadly irony, because these funds add up to a huge amount of money for the Taliban.

  23. klynn says:

    That’s the problem, of course, when you give immunity for something everyone knows was a crime.

    I keep wondering how the history books will handle that fact.

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