emptywheel Archives - Page 118 of 245

Framework in Place for P5+1, Iran Final Nuclear Negotiations

February 20, 2014/6 Comments/in emptywheel /by Jim White

After several days of warnings from both sides not to expect too much from the current round of talks between the P5+1 group of countries and Iran on Iran’s nuclear program, we have word today that the two sides have agreed to the framework under which the negotiations are to proceed. Furthermore, the date for the next formal session has been announced and the head negotiator for the P5+1 side will visit Tehran a week before the full session.

Here is George Jahn of AP on today’s announcement:

Iran and six world powers ended the opening round of nuclear talks on an upbeat note Thursday, with both sides saying they had agreed on a plan for further negotiations meant to produce a comprehensive deal to set limits on Tehran’s nuclear ambitions.

In a joint statement, they said the next round of negotiations would begin in Vienna on March 17, continuing a process likely to take at least six months and probably longer.

Expectations had been modest as the talks started Tuesday, and the upbeat tone on a framework for future talks appeared aimed in part to encourage skeptics inside and outside Iran that the negotiations had a chance to succeed despite huge gaps between the Iranians and the six powers.

On the Definition of Dragnet “Identifier”

February 15, 2014/in emptywheel /by emptywheel

Last month, I noted that ODNI failed to redact a reference to Verizon in one of the phone dragnet primary orders, which helped to confirm that Verizon was the provider ordered to provide only its domestic or one-end domestic call records to NSA under this order.

I’d like to look at another redaction fail (also, IIRC, pointed out to me Michael) from that document dump.

In the February 25, 2010 order, part of the footnote describing what identifiers NSA can use to contact chain was left unredacted.

The footnote starts on the previous page; this is the end of the description (the big redaction below it modifies one of the terms in the list of terror groups associations).

Given all the discussion about whether NSA does or does not collect cell phone data, I think it of particular interest that IMSI and IMEI — two ways to identify cell phone users — appear in this footnote. It’s actually not clear whether their inclusions mean they can or cannot be used as identifiers.

But there’s reason to believe the footnote says they can be used as identifiers.

The footnote first appeared in the March 5, 2009 order — the first written after Judge Reggie Walton started trying to clean up the dragnet mess.

By that point, NSA had informed Walton that an additional querying tool had regularly accessed the 215 dragnet to perform analysis of certain identifiers.

If an analyst conducted research supported by [redacted] the analyst would receive a generic notification that NSA’s signals intelligence (“SIGINT”) databases contained one or more references to the telephone identifier in which the analyst was interested; a count of how many times the identifier was present in SIGINT databases; the dates of the first and last call events associated with the identifier; a count of how many other unique telephone identifiers had direct contact with the identifier that was the subject of the analyst’s research; the total number of calls made to or from the telephone identifier that was the subject of the analyst’s research; the ratio of the count of total calls to the count of unique contacts; and the amount of time it took to process the analyst’s query.

But this was before NSA explained it treated all correlated identifiers for a particular RAS-approved person as RAS-approved,

The end-to-end review revealed the fact that NSA’s practice of using correlated selectors to query the BR FISA metadata had not been fully described to the Court. A communications address or selector, is considered correlated with other communications addresses when each additional address is shown to identify the same communicant(s) as the original address.

Though it had provided some kind of description of this practice in an August 18, 2008 filing that almost certainly served as back-up for the August 19, 2008 order that first started specifically ordering IMSI and IMEI data.

A description of how [redacted] is used to correlate [redacted] was included in the government’s 18 August 2008 filing to the FISA Court, While NSA previously described to the FISC the ractice of using correlated selectors as seeds, the FISC never addressed whether [redacted] correlated selectors met the RAS standard when any one of the correlated selectors met the RAS standard. A notice was filed with the FISC can this issue on 15 June 2009.

All of which is to say that several of the items discussed during the 2009 review pertained to how NSA tracked identities over time, particularly phone-based identities that spanned multiple cell phones.

Which would explain why it would want to track both phone numbers themselves, but especially the handset and SIM identifiers (though in the case of burner phone “correlation,” those details wouldn’t help to make a match).

None of this should be surprising. As I said, it would be shocking if the nation’s counterterrorism professionals accepted a dragnet with less functionality than the one available to DEA under AT&T’s Hemisphere program, and a key part of that program involves matching cell phone identities (though remember, Hemisphere at least used to permit tracking of geolocation, too).

But assuming that footnote defining “identifier” affirmatively includes IMSI and IMEI as potential identifiers, which would seem logical, it’s yet one more data point showing how central the use of cell phones is to the dragnet.

That still doesn’t mean the NSA collected cell phone data, or collected it from providers besides AT&T and Sprint. But it sure seems to indicate an priority on such data.

Dragnet at Bernie’s: On Spying on Congress

January 14, 2014/10 Comments/in emptywheel, FISA, PATRIOT /by emptywheel

It turns out that Mark Kirk — not Bernie Sanders — was the first member of Congress to raise concerns about the NSA spying on Senators after Edward Snowden’s leaks started being published. Kirk did so less than a day after the Guardian published the Verizon order from the phone dragnet, in an Appropriations Committee hearing on the Department of Justice’s budget (see at 2:00). After Susan Collins raised the report in the context of drone killing, Kirk asked for assurances that members of Congress weren’t included in the dragnet.

Kirk: I want to just ask, could you assure to us that no phones inside the Capitol were monitored, of members of Congress, that would give a future Executive Branch if they started pulling this kind of thing up, would give them unique leverage over the legislature?

Holder: With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss that issue–I’d be more than glad to come back in an appropriate setting to discuss the issues that you’ve raised but in this open forum–

Kirk: I’m going to interrupt you and say, the correct answer would say, no, we stayed within our lane and I’m assuring you we did not spy on members of Congress.

The first substantive question Congress asked about the dragnet was whether they were included in it.

After that, a few moments of chaos broke out, as other Senators — including NSA’s representative on the Senate Intelligence Committee, Barb Mikulski — joined in Kirk’s concerns, while suggesting the need for a full classified Senate briefing with the AG and NSA. Richard Shelby jumped in to say Mikulski should create the appropriate hearing, but repeated that what Senator Kirk asked was a very important question. Mikulski agreed that it’s the kind of question she’d like to ask herself. Kirk jumped in to raise further separation of powers concerns, given the possibility that SCOTUS had their data collected.

The very first concern members of Congress raised about the dragnet was how it would affect their power.

And then there was a classified briefing and …

… All that noble concern about separation of power melted away. And some of the same people who professed to have real concern became quite comfortable with the dragnet after all.

It’s in light of that sequence of events (along with Snowden’s claim that Members of Congress are exempt, and details about how data integrity analysts strip certain numbers out of the phone dragnet before anyone contact-chains on it) that led me to believe that NSA gave some assurances to Congress they need not worry that their power was threatened by the phone dragnet.

The best explanation from external appearances was that Congress got told their numbers got protection the average citizen’s did not, perhaps stripped out with all the pizza joints and telemarketers (that shouldn’t have alleviated their concerns, as some of that data has been found sitting on wayward servers with no explanation, but members of Congress can be dumb when they want to be).

And they were happy with the dragnet.

Then, 7 months later, Bernie Sanders started asking similar — but not the same –questions. In a letter to Keith Alexander, he raised several issues:

Phone calls made
Emails sent
Websites visited
Foreign leaders wiretapped

He even defined what he meant by spying.

“Spying” would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.

In response, Alexander rejected Sanders’ definition of spying (implicitly suggesting it wasn’t fair), while using a dodge he repeatedly has: the Americans in question are not being targeted, even while they might be collected “incidentally.”

Nothing NSA does can fairly be characterized as “spying on Members of Congress or other American elected officials.”

[snip]

NSA may not target any American for foreign intelligence collection without a finding of probable cause that the proposed target of collection is a foreign power or an agent of a foreign power. Moreover, as you are aware, whenever an NSA activity results in the incidental collection of information about Americans, that information is handled pursuant to the very robust procedures designed to protect privacy interests — procedures that must be approved by the Attorney general or the Foreign Intelligence Surveillance Court, as appropriate. All those protections apply to members of Congress, as they do to all Americans.

Alexander then addressed just one of the three kinds of spying Sanders raised: phone data (which, if I’m right that NSA strips Congressional numbers at the data integrity stage, is the one place Alexander can be fairly sure Sanders’ contacts won’t be found).

Your letter focuses on NSA’s acquisition of telephone metadata…

And used the controls imposed on the raw data of the phone dragnet as an excuse for not answering Sanders’ question.

Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

Alexander totally ignored Sanders’ two other specified concerns: emails sent and websites visited.

Which is mighty convenient, because for a very large segment of that collection (the internet metadata collected under EO 12333 and via PRISM, though not the data collected domestically before 2011 or domestic upstream collection), NSA believes it doesn’t even need Reasonable Articulable Suspicion to search on US person identifiers. Read more →

Christmas Eve at Emptywheel

December 24, 2013/67 Comments/in emptywheel /by bmaz

Well, it is that time of year again. We have reached another Christmas eve here at the Wheelhouse. Here at Casa de Bmaz we are still finishing up some shopping, doing some cooking and getting ready for happy hour. Marcy and Mr. Wheel are in the Keystone state visiting family and Jim White and family are preparing for a sunny Christmas day down in Florida.

Don’t have a lot to say here, just a hello and thanks for making this forum the best in the blogosphere. Times change, but the consistency and quality of our friends, colleagues and commenters is amazing. Thank you.

One last note, today marks the second anniversary of the passing of our colleague and friend Mary Perdue, or as she was simply known here “Mary”. There are two days that I will forever associate with Mary, Kentucky Derby day because of her love for horses and Christmas Eve. So, as we did last year at this time, raise a glass, have a laugh, think of the Constitution and salute.

If you are around, chime in with what you are up to, what you are eating and cooking, what you are drinking and what you are thinking.

Have a Merry Christmas and Happy Holidays folks!

Emptywheel’s Christmas Trash Talk

December 22, 2013/33 Comments/in emptywheel, Football, Trash Talk /by bmaz

Well, Trash is harder to gin up for without the regular season college games in action. And, no, the Royal Purple Bowl was not enough to overcome that fact. The only bowl game even halfway interesting between now and next weekend is Boise State versus Oregon State in the Hawaii Bowl on Christmas Eve. Take Boise.

The NFL game that most interests me is, of course, the Packers and Steelers on the Frozen Tundra of Lambeau. The Cheese has won two in a row with Matt Flynn at the helm, but have looked shaky doing so. At least they are scoring points, which is good because their defense is atrocious. The Steelers have rebounded to be very respectable. Pittsburgh’s defensive secondary is pretty good, so Green Bay will have to hope for a huge game from Eddie Lacy. Big Ben and the Stillers will score on the Pack, and I will take them in only the mildest of upsets.

Probably the best game today is Baltimore hosting New England. The Ravens have won four in a row and seem to be on a playoff run that seemed unlikely mid season. And the Pats always have a tough time in Baltimore. Plus Brady is throwing to the midget brigade again. Oh, and Justin Tucker has not missed a field goal since the second week of the season. Kenbrell Thompkins and Nate Solder have been downgraded to OUT & will not play. I am trying to find the positive note here that points to Brady and Belichick winning this game, because I think they will. But I sure don’t see it on paper.

The ‘Boys at Skins could be a fascinating game to see which sad sack team manages to pull out the win and how. Mostly, it will be interesting to see how Kirk Cousins plays in his second straight start. Take the ‘Boys I guess but, really, who cares? Colts at Chefs also interesting. Colts are sliding and Trent Richardson has been none of the help he was brought in to be. Chefs on the other hand are starting to open their offense up for Alex Smith and still have that great defense. Chefs smoke some horsehide.

Bears are at the Iggles and Giants at the Lions. This weekend really seems to favor the Lions. Both the Pack and Bears have to play tough games, and the Kittehs draw the hapless Giants and Bad Eli Manning’s ever more contorted dour face. At home in Deetroit. Card and Squawks would be a great game….if it were anywhere but Seattle. A hellish place to play. Cards are a pretty solid team, but no way they will win in the Squawk Palace. Which will probably put an end to the Cards’ playoff hopes for the year.

The final Monday Night game of the year is also the final game ever in famed (or infamous as the case may be) Candlestick Park. Cleveland may talk about their Mistake By The Lake, but, damn, they got nuthin on San Francisco and the Stick. The old story was that the only real site survey was done at a time of day when all was calm there, and no one ever told Horace Stoneham and the other poohbahs that it was a swirling wind hell during afternoons and nights when most games would be played. Ooops! At any rate, take the Niners big over the hapless Falcons (sad end for Tony Gonzales’ storied career). Here, thanks to PJ Evans, is a great photo history of the Stick.

DOJ’s New “Transparency” on the Dragnet: Admitting Their “Physical Search” Was the “Dragnet”

October 25, 2013/7 Comments/in emptywheel /by emptywheel

DOJ has been boasting to the press for weeks that it will give Jamshid Muhtorov (though they didn’t name him) notice that they used NSA spook authorities to catch him in his alleged support for Uzbekistan’s Islamic Jihad Union. Now that they have released his name, there are a lot of reasons to be cynical about that: the possibility they’ll try to implicate Human Rights Watch, the possibility they’ll tie him to Najibullah Zazi (like Muhtorov) living in Aurora, CO, the apparent fact that they have no other evidence against him except intercepts.

But here’s what this notice constitutes. Here’s the notice they filed in February 2012.

Comes now the United States of America, by John F. Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Jason Kellhofer and Erin Creegan, Trial Attorneys United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defendant, Jamshid Muhtorov that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829.

And here’s the notice they filed today, in their big bid for transparency.

Comes now the United States of America, by John Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Erin Creegan, Trial Attorney United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. ” 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. ‘ 1881a. Dated this 25th day of October, 2013.

That is, their idea of “transparency” is to notice 50 USC 1881a, which is Section 702 of FAA (wiretapping based off a foreign target), instead of 50 USC 1825(d) which is physical search. (See here and here for just two of the instances where I note they’re calling dragnet searches physical ones.)

That’s it. For years, they’ve been telling defendants they were subjects of a physical search, when in fact they were subjects of a dragnet.

And this is their gleeful new exhibit of transparency.

US Priorities at Parwan: $60 Million Prison Built Quickly, $2.7 Million Courthouse Languished

October 25, 2013/2 Comments/in emptywheel /by Jim White

The incomplete courthouse at Parwan.

In a report issued today (pdf), SIGAR provides details on how a project to build a courthouse at the Parwan complex languished with incompetent construction and poor oversight. It was only after SIGAR provided a draft version of their report that the contracting authority changed the status of their stop-work order from one that would have allowed the contractor to receive the rest of the funds without completing the work to a status that prevented a huge financial reward for shoddy and incomplete work.

But this courthouse project does not sit in isolation. The Parwan complex, and its predecessor, the prison at Bagram, have a deep history that provides a microcosm of the atrocities and incompetence that the US war in Afghanistan has come to represent. Never forget that it was at Bagram where Joshua Claus murdered innocent taxi driver Dilawar. Dilawar was murdered at Bagram only a few short days after Habibullah was murdered there, as well. But the US had grand plans for the Bagram air base complex. From the background section of the SIGAR report:

The U.S. and Afghan governments signed a Letter of Agreement in 2006 that committed to improve governance by enhancing the administration of justice and rule of law. A key element in implementing this strategy was the development of a criminal justice facility known as the Justice Center in Parwan (JCIP). JCIP was designed to provide a secure facility for transferring Afghan combatants from U.S. military custody into the Afghan criminal justice system. The U.S. government was to assist with building, equipping, and operating the JCIP, as well as mentoring and training Afghan government personnel assigned to the facility. JCIP was planned as a complex of 11 buildings—a courthouse, offices, laboratory facilities, meeting hall, and housing—located adjacent to the existing Parwan Detention Facility, which is next to the Bagram Airfield north of Kabul. The courthouse was expected to be the centerpiece for Afghan national security trials.

But even though there was a detention facility at Parwan when that agreement was signed in 2006, the US quickly saw that its plans to detain thousands of Afghan citizens meant that a much bigger prison was needed. And indeed, a shiny new $60 million prison was opened in 2010. And yet, the contract on the courthouse at Parwan wasn’t signed until 2011:

On June 13, 2011, DOD’s Bagram Regional Contracting Center (BRCC) 3 awarded a $2.38 million firm fixedprice contract (W91B4N-11-C-8066) to CLC Construction Company (CLC) to build a courthouse at the JCIP complex.4 The design documents called for construction of a 2-story courthouse, including 4 courtrooms, 6 judge’s chambers, 23 individual offices, and 4 holding cells. CLC was given 155 days to complete the project after the notice to proceed was issued on July 16, 2011. The contract also required CLC to perform engineering, review, verification, and concept design functions. On November 11, 2011, the contract was modified to increase the height of the courthouse ceilings and, as a result, the contract value was increased from $2.38 million to $2.67 million.

It does seem that 155 days is a very short time frame for a construction project of over $2 million, especially if engineering and concept design are also included. But CLC fell behind immediately and what work they did was ridiculously incompetent: Read more →

Daily Mail Wins Partial Declassification of British Court Decision Documenting Torture in Afghan Prison

October 21, 2013/5 Comments/in emptywheel /by Jim White

Certified for torture.

Today marks the third time that I have used this photo that remarkably still resides on ISAFMedia’s Flickr photostream. The caption, in full, as it has always been carried by ISAFMedia:

CAMP DARULAMAN, Afghanistan – Brig. Gen. Saffiullah, Afghan National Army Military Police Brigade commander, holds a certificate presented by Vice Adm. Robert Harward, Joint Task Force 435 commander. The certificate was presented during a ceremony here April 5 in front of an ANA Military Police brigade. The brigade will complete the extensive training program prior to their assumption of detention facility security operations at the Detention Facility in Parwan. The brigade already conducts detention and corrections operations at the Afghan National Detention Facility in Pol-e-Charkhi. The event was another step toward the transition of the detention facility from the United States to the Afghan government. (Photo by U.S. Air Force 1st Lt. Joost Verduyn)

The date of April 5 on the photo refers to the year 2010. Of particular importance today is the bit where, on that date, the caption states that the Afghan National Army (after training by Robert Harward’s JSOC team) was “already” in charge of the Afghan prison facility at Pol-e-Charkhi. That prison is in Kabul. And that documentation of US-trained personnel controlling that prison is very important for this story published yesterday by the Daily Mail:

The Mail on Sunday has delivered a decisive blow against the creeping new culture of ‘secret justice’ after forcing the disclosure of a classified High Court judgment about torture in Afghanistan.

After a ten-month legal battle, we can at last reveal horrifying allegations over the treatment of prisoners captured by British forces in Afghanistan – evidence the Ministry of Defence wanted to keep secret.

12 Years Later, DOJ Is Still Struggling Through Dragnet Discovery Issues

October 17, 2013/5 Comments/in emptywheel, FISA, PATRIOT /by emptywheel

As I noted earlier, Charlie Savage describes how, after Don Verrilli made false representations to the Supreme Court about whether defendants get an opportunity to challenge FISA Amendments Act derived evidence, it set off a discussion in DOJ about their discovery obligations.

Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

In national security cases involving orders issued under the Foreign Intelligence Surveillance Act of 1978, or FISA, prosecutors alert defendants only that some evidence derives from a FISA wiretap, but not details like whether there had just been one order or a chain of several. Only judges see those details.

After the 2008 law, that generic approach meant that prosecutors did not disclose when some traditional FISA wiretap orders had been obtained using information gathered through the warrantless wiretapping program. Division officials believed it would have to disclose the use of that program only if it introduced a recorded phone call or intercepted e-mail gathered directly from the program — and for five years, they avoided doing so.

For Mr. Verrilli, that raised a more fundamental question: was there any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search? [my emphasis]

It’s not entirely true that only judges learn if there are a series of orders leading up to a traditional FISA that incriminates a person. For example, we know it took 11 dockets and multiple orders to establish probable cause to wiretap Basaaly Moalin, the one person allegedly caught using Section 215. We also know there was a 2-month delay between the time they identified his calls with (probably) Somali warlord Aden Ayrow and the time they started wiretapping him under traditional FISA. Even before that point, Ayrow would have been — and almost certainly was — a legal FISA Amendments Act target. Meaning it’d be very easy for the government to watch Moalin’s side of their conversations in those two months to develop probable cause — or even to go back and read historical conversations (note, Ken Wainstein may have signed some of the declarations in question, which would make a lot of sense if they took place during the transition between Attorneys General earlier in 2007).

But Moalin’s attorneys didn’t — and still haven’t — learned whether that’s what happened. (Note, I’m overdue to lay out the filings in the case since I last covered it; consider it pending.)

CIA Aims to Hide Its SEKRIT Files at Second Circuit Again

October 15, 2013/3 Comments/in Drones, emptywheel, state secrets, Torture /by emptywheel

Roughly four years ago, then National Security Advisor James Jones submitted a nearly unprecedented sealed declaration to the Second Circuit in the ACLU’s torture FOIA lawsuit. In it he argued the government needed to keep secret a short reference making it clear the torture program operated under Presidential authorization.

The following May — perhaps not coincidentally just months after America’s first attempt to execute Anwar al-Awlaki by drone strike and as OLC was scrambling to come up with some justification for doing so — the Second Circuit granted the government’s request, deeming the language an intelligence source or method, and giving the request particular weight because the language pertained to intelligence activities unrelated to torture.

On October 1, the Second Circuit heard the ACLU and NYT’s appeal of Colleen McMahon’s decision to dismiss their FOIA on documents relating to the Awlaki killing.

At the hearing, this exchange occurred.

JUDGE NEWMAN: In one of your sealed excerpts from your briefs, I am not going to disclose a secret. There is a statutory reference from Title 50. You’re probably familiar with it. It has to do with whether affidavits are sufficient. It’s Title 50. I think it’s Section 430(f)(2). Does that ring a bell at all?

MS. SWINGLE: I believe so, your Honor.

JUDGE NEWMAN: Is that a correct citation? Because I couldn’t find it.

MS. SWINGLE: I can check and provide the information for your Honor. Off the top of my head, I can’t say that I know either.

JUDGE NEWMAN: Do they have it there?

MS. SWINGLE: Again, your Honor, that would be information we could provide separately to the Court, to the extent it is something that’s only in the classified part.

JUDGE NEWMAN: Just the statutory reference. Is it the right statute? That’s all I want to know.

Citing this passage, on Thursday the government asked to submit an ex parte filling clarifying both the answer Swingle gave, as well as the answer to an unidentified question raised in the hearing.

During the oral argument on October 1, 2013, a member of the panel asked the government to clarify a citation contained in a classified declaration in the record. See Tr. 73-74. The government’s proposed supplemental classified submission provides the clarification requested by the Court. The proposed supplemental classified submission also provides an additional answer to a question posed during oral argument that could not be adequately and completely answered in a public setting.

Both the NYT and the ACLU objected to this ex parte clarification of the answer (the NYT doesn’t object to such a filing pertaining to the citation), given that the Court didn’t ask for any further clarification.

The Government’s motion does not at any point include information about the nature of the “additional answer” that the Government is providing to the Court or the question to which it is addressed. The Court did not request such a supplemental answer, and there is no basis for a party to unilaterally provide itself with a further opportunity to extend argument – especially in secret – after the conclusion of oral argument.

Now, it’s entirely unclear what the erroneous citation in the classified government brief is. Though 50 USC 431(f) may describe this section of the National Security Act on to CIA files being FOIAed (though 50 USC 403 includes definitions and roles of CIA).

(f) Whenever any person who has requested agency records under section 552 of title 5, United States Code (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code, except that–

(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;

In which case, surprise surprise, this is about hiding CIA files.

But we already knew that.

And unsurprisingly, the two questions that DOJ’s Sharon Swingle referred back to the classified documents to answer also pertained to the CIA’s SEKRIT role in drone killing Americans.

One — which gets repeated several times — pertains to why DOJ’s prior disclosure that OLC wrote one drone killing memo for DOD forces DOJ to use a No Number No List response because admitting there were other OLC memos would also entail admitting an Other Government Agency carries out those drone killings.

JUDGE NEWMAN: I come back to saying, why can’t you have a redacted Vaughn index, at least on legal reasoning. Because I don’t understand your argument that if we say there are five of them, that somehow tells people more information. What does it tell them? It says five lawyers were working.

MS. SWINGLE: With respect, your Honor, it says that OLC on five separate instances wrote advice memoranda about the use of targeted lethal force. It now tells us, and I do think this is critical, that on four of those instances, it did not involve the Department of Defense. Because we have acknowledged there is a single responsive document as to the Department of Defense. I think that is really significant information. And it is not information that has been made public by the U.S. government.

JUDGE NEWMAN: That’s a secret.

MS. SWINGLE: It is.

Read more →