Working Thread on Illegal Wiretap Memo

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As I noted in this post, DOJ has released two of the memos used to authorize the illegal wiretap program. I made some brief comments on the November 2, 2001 John Yoo memo here. This will be a working thread on the May 6, 2004 Jack Goldsmith memo.

P1: Note in the TOC (and in later references), DOJ has redacted the date when the program was modified. We know this date is some time after the March 10, 2004 hospital confrontation. Pretty much the only reason to redact that date is to make it harder to know how long the program operated solely with Bush’s authorization. And the biggest reason to do that is to hide the detail from al-Haramain’s lawyers, because it would add evidence that the phone calls intercepted in early March 2004 were intercepted at a time when the program didn’t have DOJ sanction.

P3: The first redaction on the page is interesting because it seems to qualify what they do after they intercept communications in the US; remember that one of the big conflicts at the hospital confrontation was the data mining they were doing (in defiance of Congress specifically defunding data mining of US citizens).

P3: Note the invocation of 18 USC 2510-2521 in addition to FISA. This makes it sort of explicit they were using other authorization processes for some of this. I’ll come back to this point. But it’s worth noting that the 2010 opinion cleaning up past exigent letter use used 18 USC 2511(2)(f) to do so.

P5-6: Note that footnote 2, which probably describes ongoing air patrol surveillance of the country is redacted. Note, too, that the entire paragraph is classified Secret. Goldsmith was basically using the black (heh) helicopters patrolling the skies–which we could literally hear and see–as basis to rationalize the claim that it was okay for the military to be operating in the US. And the government believes we shouldn’t know that. Moreover, there appears to have been ongoing patrols we weren’t supposed to know about in 2004.

P6: Note how Cap’n Jack asserts that 2001 AUMF is still active in May 2004:

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

He could have found any number of sources to support his claim that the 10,000 troops (ah, the good old days) in Afghanistan sustained the AUMF. Instead, he cited a story reporting Pat Tillman was “killed in combat”–itself a story that was the product of elaborate govt propaganda.

P6-7: Note the citation of the Mueller quote from testimony he gave to SSCI on February 24, 2004. That’s interesting timing, because at a February 11, 2004 hearing, Ron Wyden had asked whether Total Information Awareness, which had been explicitly defunded for that fiscal year, at which point Michael Hayden said he wanted to answer in closed session.

Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was “correct that when [TIA] was closed, that several … projects were moved to various intelligence agencies…. I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter’s programs are going on somewhere else.”

Negroponte and Mueller said they didn’t know. But Negroponte’s deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, “I’d like to answer in closed session.” Asked for comment, Wyden’s spokeswoman referred to his hearing statements.”

I wonder if the Mueller briefing Goldsmith cited was from the closed session where DIA and FBI gave their response?

P7: Note the reference to minimization. I believe that’s the first we’ve heard about minimization in the early days of the program. Also note that he directs DOD generally, not NSA specifically, to do the minimization. That’s downright odd. [Update: now, we’ve had discussion about minimization before. See this post.]

P8: Note the fourth redaction on this page, after the words, “without resort to judicial warrants.” It appears that warrants is followed by a period, but that doesn’t make sense as it appears there are a few more words to that sentence. Judicial warrants … “and oversight,” maybe? Any other guesses?

P8: Goldsmith notes that the Gang of Four were briefed on the program “in 2002 and 2003.” As I have noted before, there should have been a briefing in January 2004. Much of the rest of that footnote may well explain how they got out of that briefing.

P9: Note the second redaction, hiding who besides the DCI reviews the threat assessment that justifies the continuation of the program before it goes to OLC. That’s particularly interesting given that the Terrorist Threat Integration System was doing the treat assessment in May 2004, when Goldsmith wrote this opinion. And John Brennan, currently Obama’s Deputy National Security Advisor, was in charge of the TTIC at the time. In any case, it doesn’t seem justifiable to redact who, besides the DCI, does this review. Note that the IG Report also refers OGC attorneys reviewing the the threat assessment to fluff it up if it wasn’t sufficient to justify sustaining the program.

P9: Goldsmith writes:

As explained below, since the inception of [redacted name of program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to hae, multiple redundant plans for executing further attacks with the United States.

See how one illegal program serves to justify another illegal program?

P11: Goldsmith launches his discussion of the changes that took place in March 19 with a discussion of “how the NSA accomplishes the collection activity under [the program].” That might support the datamining aspect, but maybe not.

P15: Note there’s a word after the “Commander in Chief Clause” in the description of the basis Bush invoked to authorize the program on March 11. Wonder what that is?

P16: The modification took place on March 19. Note that it pertained to making it clear “there were reasonable grounds to believe that a communicant was an agent of an international terrorist group …” I’m betting the caveat after that doesn’t ultimately say what Goldsmith would, that the terrorist organization has to target the US.

P16: Note Goldsmith authorizes three activities. One is the authority to “intercept the content of international communications ‘for which … a party to such communication is a group engaged in international terrorism, or activities in preparations therefor, or any agent of such a group,’ as long as that group is al Qaeda, an affiliate of al Qaeda, or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile action within the United States.”

P17: Goldsmith lists the following opinions related to this program:

  • October 4, 2001
  • November 2, 2001, expressly authorizing a November 2, 2001 authorization
  • October 11, 2002: confirming the application of prior analysis

Note two things. First, this list doesn’t coincide with other lists (Goldsmith ignores the October 23, 2001 4th amendment eliminating one, as well as some “hypothetical ones” in between; the IG Report only talks about the November 4 one, and Bradbury talks about a few more.

Also note the space between the date, October 4, 2001, and the main clause of the sentence, “we evaluated.” One thing I’m increasingly convinced is that the program operated under FISA’s 15-day window until October 3, 2001. So I wonder if that acknowledges that fact?

P18: Note that Goldsmith starts w/12333. That’s the EO that Bush pixie dusted.

P20: The paragraphs that appear in part on this page appear to be misclassified. They both talk exclusively about published legislation. Neither mentions the name of the program. Yet both are classified TS.

P21: Note how Goldsmith introduces his claim that FISA is not exclusive: “We conclude that the Congressional Authorization is critical for [redacted name of program] in two respects.” That reveals how much he reverse his analysis, not looking at what the AUMF said, bu what he needed to justify the program.

P23: My discussion of the newly disclosed OLC opinion discussed in the footnote is here.

P30: The examples Goldsmith uses to show the continuity of SIGINT is terrible cherry picking. How is Jeb Stuart’s personal wiretapper, wiretapping commercially run cables, similar to wiretapping private phone calls? MOre damning still is his lack of any treatment of Vietnam era wiretapping, done under cover of war, but targeting speech.

Note too where Goldsmith highlights the phrase “control all other telecommunications traffic” when discussing WWII surveillance. Since that’s what we think they were doing here, I find the emphasis notable.

P31: Note that Goldsmith refers to the 15-day exemption under FISA; he says “as noted above,” meaning he has already treated this, in what must be a now-redacted section. Particularly given Goldsmith’s discussion of the legislative intent–to give Congress time to alter FISA in time of war–his non-discussion of PATRIOT here is nothing short of dishonest. (He does discuss it later, though.) This allows him to say, “The mere fact that the Authorization does not amend FISA is not material,” without at the same time acknowledging that Congress was at that moment amending FISA! It’s all the more important given the October 4 approval that would have marked the end of the 15-day exemption period.

P31: Note the footnote invoking the Padilla and Hamdi circuit court decisions. On his last day as AAG, Goldsmith wrote an opinion that reviews whether a recent court decision–almost certainly Rasul–affected his analysis. But we’re not being given that opinion.

P32: I wonder how Goldsmith responded to Tom Daschle’s op-ed making it clear that Congress specifically refused action in the US, given that he claims the “deter and prevent acts of international terrorism against the US” amounted to carte blanche to operate in the US.

P32: NOte the reference to the Iraq AUMF–and its invocation of terrorism. That’s relevant not least bc Goldsmith expands the terms of the Afghan AUMF beyond al Qaeda.

P34: Note that the paragraph of this page, discussing a PATRIOT change, is unclassified. The next, also discussing a PATRIOT change, is classified TS. The only plausible explanation I can think of for the the second is to hide from people outside of the compartment how full of shit that second paragraph is.

[Note: I lost a huge chunk of this post right in here–looking to see if I can reconstruct it]

P39: Check out this tautology Goldsmith uses to argue foreign intelligence doesn’t need a warrant:

In foreign intelligence investigations, the targets of surveillance are agents of foreign powers who may be specially trained in concealing their activities from our government and whose activities may be particularly difficult to detect.

Of course, the whole point of this program is to find people who might be agents of foreign powers; we don’t know that they are until the investigation finds them.

P40-41: This is a troubling assertion about Keith:

In addition, there is a further basis on which Keith is readily distinguished. As Keith made clear, one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained, “Fourth Amendment protections become the more necessary when teh targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute when the Government attempts to act under so vague a concept as the power to protect “domestic security.” Keith 407 US at 314.see also id at 120 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.”) Surveillance of domestic groups necessarily raises a First Amendment concern that generally is not present when the subjects of the surveillance are the agents of foreign powers.

Aside from the obvious fact that the surveillance Goldsmith was justifying almost always had a religious component, a lot of the evidence picked up on alleged domestic Islamic terrorists amounts to speech. And often a disagreement about things like the Iraq war. It’s more of the tautological construction, if foreign then not First Amendment, when that is obviously not the case. Note, there’s a big redaction after the passage above which I suspect is nonsense.

P41: Goldsmith:

Second, it also bears noting that in the 1970s the Supreme Court had barely started to develop the “special needs” jurisprudence of warrantless searches under the Fourth Amendment.

I’m gonna have to either return to this or just hope bmaz hits it. It’s like every section of this opinion Goldsmith chooses to deal with a second, exclusive period of history.

P43: Note how Goldsmith pretends Congress passed FISA in 2001, not 1978.

To be more precise, analysis of [redacted–name of program] presents an even narrower question: namely, whether, in the context of an ongoing armed conflict, Congress may, through FISA, impose restrictions on the means by which the Commander in Chief may use the capabilities of the Department of Defense to gather intelligence about the enemy in order to thwart foreign attacks on the United States.

Putting aside the fact that this program identified who the enemy is, as much as collecting information from that enemy, Goldsmith here betrays his task. Not to see whether Bush acted properly in not asking for legislation to amend FISA, but to suggest that FISA is an addition to the already existing program. Which of course it was not.

This is made more clear a few lines later:

In almost every previous instance in which the country has been threatened by war or imminent foreign attack and the President has taken extraordinary measures to secure the national defense, Congress has acted to support the Executive through affirmative legislation granting the President broad wartime powers, or else the Executive has acted as exigent circumstances in the absence of any congressional action whatsoever.

In his book Goldsmith repeatedly says Bush’s (Cheney’s, Addington’s) mistake was in not consulting Congress. And that’s evident here, too: of course Congress made affirmative legislation. It’s called the PATRIOT Act. But for some reason the President refused to ask for these powers.

P46: Note that in his review of enumerated Congressional powers Goldsmith doesn’t consider the power to declare war?

P51: Note the reference to the President’s threat assessment on March 11, 2004. You’d think that’d mention the Madrid bombing that happened that day. But of course at that point Aznar was pretending that ETA caused the bombing, not an al Qaeda inspired–but not AQ direct–group.

P61: I presume Goldsmith didn’t have a straight face when he wrote the last full paragraph trying to distinguish Youngstown–bc Congress gave other alternatives to resolve labor disputes–from FISA, which Congress was actively changing per the Executive’s requests in 2001.

P70ff: Note how here Goldsmith argues not just that FISA can’t restrict POTUS bc of inherent power, but it can’t bc FISA is so onerous that “it ‘render[s] it impossible for the President to perform his constitutionally prescribed functions.’ [Redacted–curious what this cite is] Several factors combine to make the FISA process an insufficient mechanism for responding to the crisis the President has faced in the wake of the September 11 attacks.” It then has a totally redacted discussion about why FISA makes POTUS’ job impossible. This strikes me as the reason why Goldsmith’s innocuous discussion of the switch to 72-hour warrant requirement is classified TS. Because Congress was working to make it less onerous.

P102: Jack Goldsmith, bleeding heart defender of Wall Street:

The nation has already suffered one attack that disrupted the Nation’s financial center for days and that successfully struck at the command and control center for the Nation’s military.

Glad to see those 3000 people didn’t weigh in here. I’ll return to this logic in upcoming days. After all, if the risk of disruption on Wall Street gives the President super-human powers, then shouldn’t we be using them to reel in Wall Street now?

P105: Goldsmith’s stawmen:

Thus, a program of surveillance that operated by listening to the content of every telephone call in the United States in order to find those calls that might relate to terrorism would require us to consider a rather different balance here.

Right. They’re not taking “content” of every telephone call. They’re taking data.

Newly Released OLC Opinion Reveals How Yoo Relied on Eliminating Fourth Amendment to Wiretap Illegally

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As Josh Gerstein and Jack Goldsmith note, DOJ just released two of the opinions underlying the warrantless wiretap programs. They both focus on the May 6, 2004 opinion Goldsmith wrote in the wake of the hospital confrontation; I’ll have far more to say about that opinion later today and/or tomorrow.

But I wanted to look at what the highly redacted opinion John Yoo wrote on November 2, 2001 tells us.

The opinion is so completely redacted we only get snippets. Those snippets are, in part:

FISA only provides safe harbor for electronic surveillance, and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.

[snip]

Thus, unless Congress made a clear statement that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.

[snip]

intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.

[snip]

A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

To understand what those quotes mean, it helps to recall that on October 23, 2001, John Yoo and Robert Delahunty wrote another memo assessing whether the military could deploy in the US in a war against terrorists. It concludes, in part, that,

Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation’s recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.

Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.

It relies on the hypothetical in which a military commander searches an entire apartment building for the WMD inside.

Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside.

As I have suggested in the past, it helps to replace “apartment building” with “email server” to understand the implications of such an opinion given that our wiretapping is done by military commanders at the NSA.

In other words, on October 23, 2001, Yoo wrote an opinion largely justifying searches by military commanders domestically.

And then on November 2, 2001, he interpreted wiretapping as a search (presumably arguing that since we were vacuuming up all data signals, we were obtaining physical possession of them that thereby got around restrictions on electronic surveillance, at least in Yoo’s addled little mind).

Of course, the Fourth Amendment opinion is utterly ridiculous. But they were still relying on it until October 6, 2008, even while equivocating to members of Congress about doing so.

So you see, Cheney’s illegal wiretapping program was totally legal. What you didn’t know, though, is that the Fourth Amendment is just a quaint artifact of time before 9/11.

NSA’s Clusterfuck Financial Management

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I’m reading through the Senate Select Committee on Intelligence’s report on what it did last Congress. Among a number of interesting details, the report describes really really bad accounting at the National Security Agency (NSA).

The report describes how the Intelligence Authorization Bill of 2002 required that our big intelligence agencies produce auditable financial statements by 2005. Most agencies at least showed improvement; the National Reconnaissance Office (NRO) actually fixed its books so they were auditable. But when the Committee looked at NSA’s books in 2009, they were still a complete clusterfuck.

The NSA‘s annual financial report was the exception, in that it showed no apparent improvement. In particular, the Committee was concerned about the failed implementation of NSA‘s new financial system. An NSA Inspector General report found that this system was put into operation before it was adequately tested and that operators were not properly trained to use it. The NSA also made $7 million in duplicative invoice payments, and the agency could not successfully reconcile its financial books at the end of fiscal year 2008. Further, a July 2008 Army Finance Command report, referenced by the NSA IG, found that the NSA‘s accounting system was in violation of public laws, Treasury Department financial manuals, and DoD regulations, and was inconsistent with the Federal Managers Financial Integrity Act.

After SSCI cracked heads, the NSA claimed it had fixed the problems in June 2009. Only they hadn’t.

In June 2009, the Director of NSA wrote to the Chairman and Vice Chairman, claiming that the NSA was now ―fully compliant with the laws, regulations, and manuals referenced in the U.S. Army Finance Command report and the Federal Financial Managers Integrity Act. The NSA Director‘s letter also stated that the NSA had been able to reconcile its fiscal year 2008 financial records. In July 2009, the Chairman and Vice Chairman wrote to the Secretary of Defense concerning the NSA Director‘s letter. They stated that in light of the NSA‘s past difficulties in producing auditable financial statements, the Committee believed the progress claimed by the NSA should be independently confirmed by the DoD Inspector General. Specifically, the letter requested that the DoD IG conduct a form and content review of the NSA‘s fiscal year 2009 financial statements to determine whether they were supported by reliable and accounting data and supporting information.

The Committee received the results of the DoD IG‘s review in November 2009, which was very critical of NSA‘s claims. Overall, the IG found that the NSA‘s financial statements were not adequately supported by reliable accounting data and supporting information. An even more disturbing finding was that the NSA‘s ―remediation plans do not fully address audit impediments. Specific findings included an inability to reconcile critical general ledger balances, failure to perform required accounting processes, and inconsistencies between the information contained in the notes to the financial statements and the information provided to the IG. The IG‘s findings raised serious questions about the assertions made by the NSA Director in his June 2009 letter and the support he is receiving from the administrative staff involved.

The report doesn’t actually say whether NSA has since fixed its auditing systems such that someone can actually tell whether the telecoms paid to spy on us are paid what they are supposed to be paid. So the most up-to-date information the report provides is that in late 2009, the NSA wasn’t really planning to fix the things that made it difficult to audit its books.

Along the way, some lucky telecoms (or other contractors) got paid twice. Or maybe got paid for stuff that is not on the books, who knows?

Now, $7 million is small potatoes in the great pot of money the NSA doles out to contractors. It’s not like they lost $9 billion in cash, like some other entities at DOD.

But at the same time as SSCI was discovering how bad NSA’s book-keeping practices were, they were overseeing the assignment to NSA of our Cyber Command. Keith Alexander, the guy who oversaw this book-keeping clusterfuck, is now in charge of even more secret contracts to people who spy on activities that might sweep up Americans.

Call me crazy, but NSA’s apparently inability or unwillingness to fix its book-keeping seems rather ripe for abuse.

US Cheating on European SWIFT Agreement Reveals Safeguards Were Oversold

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As I noted last night, the US has been violating the spirit of its agreement with the EU on access to the SWIFT database–the database tracking international financial transfers. Rather than giving Europol specific, written requests for data, it has been giving it generic requests backed by oral requests the Europol staffers are not supposed to record. That arrangement makes it impossible to audit the requests the US is making, as required by the agreement between the US and EU.

But not only does our cheating make us an arrogant data octopus, it may suggest we’re violating our own internal safeguards on the program.

Back when Lichtblau and Risen first exposed the SWIFT program, they described how it initially operated under emergency powers. On such terms, SWIFT turned over its entire database.

Indeed, the cooperative’s executives voiced early concerns about legal and corporate liability, officials said, and the Treasury Department’s Office of Foreign Asset Control began issuing broad subpoenas for the cooperative’s records related to terrorism. One official said the subpoenas were intended to give Swift some legal protection.

Underlying the government’s legal analysis was the International Emergency Economic Powers Act, which Mr. Bush invoked after the 9/11 attacks. The law gives the president what legal experts say is broad authority to “investigate, regulate or prohibit” foreign transactions in responding to “an unusual and extraordinary threat.”

[snip]

Within weeks of 9/11, Swift began turning over records that allowed American analysts to look for evidence of terrorist financing. Initially, there appear to have been few formal limits on the searches.

“At first, they got everything — the entire Swift database,” one person close to the operation said.

But then they put in more safeguards. One of those safeguards was to have an outside auditing firm review the requests to make sure they were based on actual leads about actual suspected terrorists.

Officials realized the potential for abuse, and narrowed the program’s targets and put in more safeguards. Among them were the auditing firm, an electronic record of every search and a requirement that analysts involved in the operation document the intelligence that justified each data search. Mr. Levey said the program was used only to examine records of individuals or entities, not for broader data searches.

[snip]

Swift executives have been uneasy at times about their secret role, the government and industry officials said. By 2003, the executives told American officials they were considering pulling out of the arrangement, which began as an emergency response to the Sept. 11 attacks, the officials said. Worried about potential legal liability, the Swift executives agreed to continue providing the data only after top officials, including Alan Greenspan, then chairman of the Federal Reserve, intervened. At that time, new controls were introduced.

Among the safeguards, government officials said, is an outside auditing firm that verifies that the data searches are based on intelligence leads about suspected terrorists. “We are not on a fishing expedition,” Mr. Levey said. “We’re not just turning on a vacuum cleaner and sucking in all the information that we can.”

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US Cheats on SWIFT Agreement with Oral Requests

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I have tracked the American negotiations with the post-Lisbon EU to get continued access to the SWIFT database, the database that tracks international money payments.

Basically, after the Lisbon Treaty went into effect last year, the EU Parliament balked at giving Americans free run of the SWIFT database. The EU and US put an interim agreement in place. Which the EU Parliament then overturned in February. The US then granted EU citizens privacy protections Americans don’t have.

As part of the Terrorist Finance Tracking Program agreement negotiated between the US and EU, the Europol Joint Supervisory Body was tasked with auditing whether the US was complying with the data protection requirements of the agreement.

Back in November, JSB did their first audit; they just released their report.

The report revealed that the Americans have been submitting largely identical requests–but then supplementing them with oral requests.

The oral requests, of course, make it impossible to audit the requests.

At the time of the inspection, Europol had received our requests for SWIFT data. Those four requests are almost identical in nature and request–in abstract terms–broad types of data, also involving EU Member States’ data. Due to their abstract nature, proper verification of whether the requests are in line with the conditions of the Article 4(2) of the TFTP Agreement–on the basis of the available documentation–is impossible. The JSB considers it likely that the information in the requests could be more specific.

Information provided orally–to certain Europol staff by the US Treasury Department, with the stipulation that no written notes are made–has had an impact upon each of Europol’s decisions; however, the JSB does not know the content of that information. Therefore, where the requests lack the necessary written information to allow proper verification of compliance with Article 4(2) of the TFTP Agreement, it is impossible to check whether this deficiency is rectified by the orally provided information.

And boy are the Europeans P-I-S-S-E-D mad at the Americans for betraying the spirit of the agreement.

“As Members of Parliament we feel betrayed reading this report”, said Alexander Alvaro (ALDE, DE), Parliament’s rapporteur on the TFTP agreement. “We voted in favour [of this agreement last year] in the trust that both parties would apply the adopted agreement”, which “concerns the transfer of sensitive data belonging to our citizens”, he stressed, adding that “the credibility of Parliament and of this committee are being jeopardised. This is about trust and confidence of the public in what the EU did and is capable of doing here”.

“We have given our trust to the other EU institutions, but our trust has been betrayed”, said Sophia in’t Veld (ALDE, NL), rapporteur on the EU-US Passenger Name Record (PNR) agreements. “This should be kept in mind when they want our approval for other agreements”, she declared.

“Somehow I am not surprised”, said Simon Busuttil (EPP, MT), recalling that “at the time of the negotiations last year we were not satisfied with having Europol controlling it – we wanted additional safeguards”. He added that “the agreement is not satisfactory”, since it involves the transfer of bulk data, and insisted that “we need an EU TFTP”.

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With David Kris Gone, DOJ Tries to Vacate Vaughn Walker’s FISA Opinion

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There’s an interesting tidbit in the government’s mediation questionnaire in anticipation of their appeal of Vaughn Walker’s decision that al-Haramain had been illegally wiretapped and was entitled to damages.

The government is willing to negotiate.

In response to the direction, “Provide any other information that might affect the suitability of this case for mediation,” the government wrote:

This matter touches upon fundamental legal issues that may be difficult if not impossible to compromise. It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings. The government is unwilling to state, however, that it would refuse to participate in mediation.

Granted, they didn’t say, “Let’s make a deal.” But compared to the imperious language the government has been using throughout this case (directed not just at the al-Haramain team, but even at Judge Walker himself), the statement that “the government is unwilling to state … that it would refuse to participate in mediation,” is like a romantic love letter. (Compare it, too, to what Imperial County said regarding mediation of Judge Walker’s equally momentous ruling in the Prop 8 case: “Due to the nature and complexity of this case, mediation will not be beneficial;” the Prop 8 defendant-intervenor team itself didn’t even answer the question!)

So on what terms is the government willing to negotiate?

It is also not clear that any viable settlement could take place absent vacatur of the district court’s legal rulings.

They’re suggesting they might just maybe be willing to maybe get into bed with al-Haramain if they’d be willing to vacate Judge Walker’s rulings.

What’s so horrible in Walker’s rulings that the government might entertain “letting the terrorists win” in exchange for vacating the rulings? It seems there are three possible parts of Walker’s July 2008 ruling the government might want vacated. (And remember, this is all premised on my supposition that the government’s coy openness to mediation suggests they are focused on vacating Walker’s ruling, which is really just a WAG.)

FISA trumps State Secrets; Congress can limit Article II secrecy

First, Walker ruled that FISA trumps state secrets.

Plaintiffs argue that the in camera procedure described in FISA’s section 1806(f) applies to preempt the protocol described in Reynolds in this case. Doc # 435/20 at 11-14. The court agrees.

[snip]

Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Walker relied on the legislative history and another case in which congressional action pre-empted common law, Milwaukee v. Illinois, to side with al-Haramain. More interesting, perhaps, is the way Walker addressed the government’s claim that USA v. Nixon and Navy v. Egan held that Article II gave the President unlimited authority over classified information. I’m particularly interested in Walker’s comments on Navy v. Egan (because both the Bush and Obama Administrations routinely rely on Navy v. Egan to claim unlimited control over classification, and it’s one part of his ruling they repeatedly ignored) are Walker’s comments on that case.

Egan recognized the president’s constitutional power to “control access to information bearing on national security,” stating that this power “falls on the President as head of the Executive Branch and as Commander in Chief” and “exists quite apart from any explicit congressional grant.” Id at 527. But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required.

Note, Walker also includes several references endorsing Congress’ claim that the government can’t withhold information about illegal intelligence activities, which probably gives the Administration gas all by itself.

In other words, one aspect of Walker’s ruling the government might want to see vacated is the ways in which he shows Congress has the authority to enact laws to limit the President’s unlimited control over secrecy.

FISA is the exclusive means to conduct electronic surveillance

This is a big one, as readily apparent from the verbal gymnastics the government engaged in during the FISA Amendments Act debate. Repeatedly, they tried to avoid letting DiFi introduce language to the effect of, “no, we meant it the first time, exclusive means means exclusive means.”

In his July 2008 ruling, Walker said,

Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

To understand why the government might want this vacated, you have to go no further than the government’s stall tactics with regards to the White Paper that purportedly made the warrantless wiretap program retroactively legal in 2006. Read more →

Will DOJ Finally Finish Its “Review” of Faulty White Paper on Illegal Wiretapping on Monday?

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Steven Aftergood reports that, as of December 10, DOJ was still “reviewing” the flawed January 2006 white paper that the Bush Administration used to retroactively claim the 2001 Authorization to Use Military Force also authorized Bush to ignore FISA.

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

[snip]

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

Now, Aftergood suggests that, without Feingold around to nag DOJ twice a year, this is where things will remain, with the white paper under permanent review (sort of the same way torture is under permanent “investigation”).

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

And he may well be right.

But I wonder whether, some time years from now, we will learn that DOJ ended up completing its review and deciding to keep the white paper around about next Monday, March 7.

After all, Feingold was likely not the only one nagging DOJ to ditch the white paper.

David Kris was probably doing so too.

Even as the white paper was being written, now Assistant Attorney General for National Security David Kris tried to persuade members of the Bush Administration their effort to legitimize the program was problematic. And within two weeks after the white paper was released, Kris wrote a very clear debunking of the white paper. He demolished the Administration’s effort to claim AUMF authorized the program.

In sum, I do not believe the statutory law will bear the government’s weight. It is very hard to read the AUMF as authorizing “electronic surveillance” in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA’s exclusivity provision. And the AUMF suffers further in light of FISA’s express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think Congress can be said to have authorized the NSA surveillance.

And while his final conclusion was more gentle, predicting the program would be “met with … hostility,” Kris made it clear that, though he didn’t know all the facts about the program, it was probably constitutionally suspect.

So I would imagine Kris has been pushing DOJ to “review” this dubious white paper since he rejoined DOJ.

But Friday is his last day. With Marty Lederman’s departure last summer and Dawn Johnsen’s abandonment by the Administration, Kris’ departure will mean the last of the noted defenders of the rule of law will be gone from DOJ. Along with Russ Feingold, seemingly the last real defender of the Constitution in Congress.

So Monday morning, nothing–no one–will be there to stop DOJ from simply declaring “Mission Accomplished” of making the white paper, rather than Congressionally-passed statute, the law of the land.

Newt’s Singeing Statement

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Newt Gingrich, in a role that was probably cast years ago, now calls on Obama to be impeached because he refuses to defend the Defense of Marriage Act in court.

Former House Speaker Newt Gingrich, who plans within two weeks to announce if he will run for president, said today that if President Obama doesn’t change his mind and order his Justice Department to enforce the Defense of Marriage Act, Republicans in Congress should strike back and even consider impeachment proceedings.

“I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job,” said Gingrich. “His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

Mind you, Newt seems to misunderstand what’s going on. After all, Obama will continue to enforce DOMA. What he won’t do is defend a law he believes to be unconstitutional; but he’ll let a court decide whether he’s right or not.

Which makes what Obama did far far less abusive (in all senses of the word) than what George W Bush did with his long catalog of signing statements. Perhaps Bush’s most famous was his signing statement to the Detainee Treatment Act.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. [my emphasis]

Not long after the DTA went into effect, Stephen Bradbury wrote his ridiculous Appendix M opinion allowing DOD to use any techniques they wanted to claim were included in that Appendix and later refused to share it with Congress.

But my personal favorite is the one he signed on the Defense Appropriation Bill in 2003, after Congress defunded data mining programs directed at Americans.

Sections 8082, 8091, 8117, and 8131 of the Act make clear that the classified annex accompanies but is not incorporated as a part of the Act, and therefore the classified annex does not meet the bicameralism and presentment requirements specified by the Constitution for the making of a law. Accordingly, the executive branch shall construe the classified annex references in sections 8082, 8091, 8117, and 8131 as advisory in effect. My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation.

As this timeline makes clear, it appears to have been an attempt to avoid having the data mining prohibition apply to the illegal wiretap program that was used, among other things, to wiretap protected conversations between defendants and their lawyers. Even after Jim Comey et al refused to reauthorize the program with its next approval (leading up to the hospital confrontation), Bush authorized it to continue anyway.

Of course, Newt didn’t make a peep when Bush issued signing statements followed by executive branch assertions of authority (his March 10, 2004 reauthorization of the illegal wiretap program and Bradbury’s memo) designed to thwart Congressional efforts to shut down specific programs.

But now that Obama has stepped back to allow the courts to decide whether a legally married gay man can extend his federal benefits to his spouse–even while continuing to enforce DOMA–Newt considers such executive branch tactics an impeachable offense.

Once again, torture and domestic surveillance are acceptable abuses of executive authority for Republicans. But a blowjob or a loving marriage requires impeachment.

Did FBI First Request James Risen’s Phone Records Using the CAU Program?

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In Josh Gerstein’s report on DOJ’s collection of James Risen’s phone and business records, he quotes University of Minnesota law professor Jane Kirtley saying that the government doesn’t give reporters notice when it collects telephone or business records on them.

Kirtley also said journalists often aren’t notified when the government asks telecom companies, banks or other service providers for their records.

DOJ must inform reporters if their call records have been subpoenaed

That may be the case in practice. But DOJ policy actually requires that journalists receive notice if their phone records are subpoenaed.

(g) In requesting the Attorney General’s authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply: (1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.

(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.

From that we should assume that DOJ got the phone records by subpoenaing Sterling’s records, not Risen’s. But if that’s the case, you’d think the government would have just told Risen that when his lawyer asked whether his records had been subpoenaed back in 2008.

Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.

“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”

“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”

In other words, there may be no cause for suspicion, except for the suspicious funkiness on the government’s part.

DOJ has refused to inform at least one reporter his or her records were subpoenaed

Now, there is one case we know of where DOJ collected information on a reporter’s phone records and did not inform him or her. The DOJ Inspector General Report on Exigent Letters describes three cases in which reporters’ phone records were collected through the telecom’s onsite Communications Analysis Unit. Two of these were collected using exigent letters; in both, the editors (for stories published in both the NYT and WaPo) and the journalist (for an Ellen Nakashima story) were informed the reporters’ records had been collected.

In the third case, the records were collected with a grand jury subpoena. Here’s what we know about the collection:

  • The investigative team included two federal prosecutors who appear to belong to a counterintelligence group at DOJ, an AUSA from the jurisdiction in which the grand jury was seated who was rubberstamping records for the investigation, the FBI case agent, and intelligence analysts.
  • The FBI case agent asked the CAU agent about how to do a phone records subpoena for the leak investigation, and the CAU agent referred the case agent to the telecom analysts at CAU for help with the subpoena. Following a meeting with (I think) an AT&T analyst, the case agent asked that analyst for boilerplate language to make sure the subpoena was “as encompassing as possible.” It appears from the report (though this information is highly redacted) that the resultant subpoena may have asked for the community of interest of the suspected leaker’s numbers. That is, it appears the subpoena asked for a network analysis of all the people who had directly contacted the target.
  • One of the two prosecutors used that boilerplate language to write up attachments to the subpoena; the rubberstamp AUSA never saw the attachments. This was the first subpoena the rubberstamp AUSA signed in the case.
  • The prosecutor that generated the subpoena claims–with an undated document to back up that claim–that the case agent told him the subpoena would not collect phone records for the reporter that–they both knew at the time–had been in phone contact with the suspected leaker. The case agent, however, did not recall such a discussion and claims it was “very unlikely” such a conversation occurred. The implication of this seems to be that the case agent knew full well he’d be getting the reporter’s call data.
  • In talking to a counterintelligence Special Agent, the prosecutor who generated the subpoena learned that such a subpoena could produce the records of reporters; he also learned there was a way to write the subpoena to avoid that from happening. Once he realized that, he had conversations with other DOJ lawyers and supervisors about what to do; they all agreed to seal the records. Though they sealed the records of the case agent and deleted them from his computer, they didn’t ask what CAU had done with the records, much less ask the CAU analyst to delete the records.
  • When the IG learned about all this, they finally checked whether this information got loaded into the investigative database. The target’s records were entered into the FBI database; the IG did not find any reporters’ information uploaded, though much of the report’s discussion on this topic is redacted.
  • DOJ’s Criminal Division informed the Court overseeing the grand jury of the subpoenas and the “corrective actions” taken.

After learning all this, the IG asked DOJ whether it should have notified the reporter in question per the policy cited above. Here’s what happened:

The Criminal Division and the OIG asked the Department’s Office of Legal Counsel (OLC) to opine on the question when the notification provision in the regulation would be triggered. Read more →

The Business Records and Classified (?) Emails of James Risen

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Jeffrey Sterling’s lawyers are throwing a number of interesting theories against the wall. In a filing demanding a bill of particulars (and presumably ultimately supporting a greymail defense),they demand to know which “defense information” is tied to each count of leaking or possessing such information, arguing that they need to know that to prevent double jeopardy. As part of that argument, though, they note that the 10 year statute of limitations on this crime exists only to make sure crafty Communists don’t evade the law.

In this case, the Government will surely claim that there is a ten year statute of limitations applicable to violations of 18 U.S.C. 793. See Internal Security Act, Ch. 1024, 64 Stat. 987, P.L. 831 (§19) (1950).

As set forth in the statute, this law was passed, by its terms, because of the then existing threat of global communism.

There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose is by treachery, deceit…espionage, sabotage, terrorism, and any other means necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a worldwide Communist organization. Id. at § 2 (1)

In this regard, the Court can see that when this law was passed in 1950, it appears that the Congress extended the statute of limitations applicable to 18 U.S.C. § 793 because the “agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form and manner successfully evasive of existing law.” Id. at § 2 (11).

As such, the defense reserves the right to challenge the application of this McCarthy era law to the charges in this case which challenge would result in the application of the general five year statute applied to felonies. 18 U.S.C. § 3282.

Sterling is alleged to have leaked to James Risen in 2003; if a 5 year SOL applied, then it would have expired after the time when the Bush DOJ declined to charge Sterling. Charging him at this late date, he seems to suggest, is just McCarthyite.

But the other interesting aspect of this filing is the one Josh Gerstein points out: the details Sterling’s lawyers provide about what they’ve gotten in discovery.

In this case, for example, the United States has provided in unclassified discovery various telephone records showing calls made by the author James Risen. It has provided three credit reports – Equifax, TransUnion and Experian – for Mr. Risen. It has produced Mr. Risen’s credit card and bank records and certain records of his airline travel. The government has also provided a copy of the cover of the book State of War written by Mr. Risen and published in 2006. It has provided receipts and shipping records from Borders and Barnes and Noble indicating that State of War was sold in this District between November 1, 2005 and March 1, 2006.4 From this document production, it can be inferred that Mr. Risen is Author A and that the “national defense information” at issue can perhaps be found somewhere in State of War.

But State of War is a long book containing many chapters. Just pointing the defense to the book, or even a particular chapter in the book, is not legally sufficient to provide notice.

4 Count Eight is a mail fraud count under 18 U.S.C. §§1341 & 2, that seeks to hold Mr. Sterling criminally liable for the decision of Author A’s publisher to sell in the Eastern District of Virginia a book allegedly containing “national defense information” obtained from Mr. Sterling. Author A and his publisher are not charged with any crime.

Now, obviously this passage does several things. It sets up a future argument–one that might be modeled on the AIPAC case–that if they’re going to charge mail fraud they also need to charge Risen’s publishers. Also, it exploits the fact that the government has sent an entire book full of highly classified disclosures–including details of the warrantless wiretap program–to introduce selective prosecution. Why is the government choosing to prosecute the alleged leaker of MERLIN information, but not the leakers of the illegal surveillance program?

But it seems Sterling’s lawyers are just as interested in getting details about the government surveillance of Risen into the record.

Now, some of this is unsurprising. We knew the government had Risen’s phone records, because the indictment cites at least 46 phone calls between Risen and Sterling. The indictment also mentions a trip Risen made (presumably to Vienna), so it’s unsurprising they have his credit card and airline information.

But that leaves two other items.

The filing mentions Risen’s three credit reports and bank records. The only possible application of this information in the indictment is the repeated distinction between Risen’s office and his residence. Presumably the latter would show up on the credit report. But that information would also be available by public means (publicly available property records, for example). So why collect Risen’s credit reports and bank records?? Was the government trying to argue Risen was in some way induced to publish this?

Also, given that this would have qualified as a counterintelligence investigation, one wonders whether the government used the PATRIOT Act to collect these records.

More interesting, though, is what Sterling’s lawyers don’t mention in this passage: emails. We know they got emails, since they refer to at least 13 emails between Risen and Sterling (and point out that the emails went through a server conveniently located in the CIA’s home district!). But for some reason, Sterling’s lawyers don’t mention having received the emails in what they specify is “unclassified discovery.”

The probable explanation for that, of course, is that they have received those emails. It’s possible they can’t mention them, though, in an unclassified filing (one clearly targeted to the public), because they were turned over in classified discovery.

It’s troubling that the government collected Risen’s credit report and bank records to develop its case against Sterling. But the possibility that the government considers the email traffic between Risen and Sterling classified suggests some even more troubling possibilities.