EFF FOIA Working Thead, Three

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Note: EFF has added one more set of documents–from the Civil Division. So if you think you’re done, you might not be, yet.

This will be another working thread on the EFF FOIA Documents–I’ll be focusing on the Office of Legal Counsel documents. Here was the first working thread (National Security Division documents) and the second working thread (Office of Information Policy documents).

The two sets of documents are:

And here’s the Vaughn Indices DOJ earlier submitted on these documents to help you figure out what they said they had.

For more on what’s in the EFF docs, MadDog and Jim White have a bunch of comments on the documents in this thread.

FISC Orders from 2007, 2006, and 2004

Shortly after the Bush Administration worked out a way to do its surveillance program through FISC, House Intelligence Committee staffer started working with Steven Bradbury to get permission for the committee to see the “recent FISA order.” During the negotiations for that, Bash noted that the committee should have been able to see the other FISA orders.

Ben Powell had indicated to me that were supposed to have been granted access to the previous orders/applications (’04 and ’06).

This tells us the program was already working with some FISC approval–presumably solicited after the hospital confrontation in 2004 and after the exposure of the program in 2005.

Steven Bradbury’s NSA email?

I’m not sure, but the email address on page 55 appears to indicate that Steven Bradbury had his own NSA email address.

Bradbury’s Emergency

On March 13, 2007, Steven Bradbury sent a telecom (page 12) a description of the emergency that precipitated Bush’s illegal wiretapping (he doesn’t call it that of course). It starts like this: Read more →

Crazy Pete Hoekstra’s NSA Dirty Work and Nidal Hasan

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I’m almost ready to post my next working thread on the EFF documents. But pages 121 through 125 of the OLC2 set deserves its own post.

It’s basically an email from Chris Donesa, a Republican HPSCI staffer, to a bunch of people at DNI, DOJ, and NSA who had been involved in the Protect America Act passage, followed by a letter Crazy Pete Hoekstra sent to NYT’s Bill Keller. He includes the message, “Happy Tuesday to all” as the only explanation.

The copy of Crazy Pete’s letter in the EFF documents is hard to read, but luckily Crazy Pete sent a copy to Human Events, too. Crazy Pete’s letter is, in turn, a response to an editorial the NYT ran after Congress caved on the PAA and a James Risen article reporting on what the legislation actually did.

Crazy Pete claims to refute the editorial and (more importantly) the Risen article.

Only, the EFF document dump makes it clear that Crazy Pete is, um, lying his ass off.

Every single one of Crazy Pete’s “refutations” completely avoid the charges made by the NYT, even while hiding the now provable fact that the NYT was absolutely correct. For example, this “refutation:”

• Misstatement and Exaggeration: “[T]he court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted.”

o Facts: This is a false and selective characterization of the plain provisions of the law.  Third parties who are asked to assist the intelligence community under the law may challenge the legality of any directive by filing a petition with the FISA Court.

Much of the discussion leading up to passage of PAA, we now know, involved preventing prior court review at all cost. Read more →

Germany: US Data-Mining Violates European Human Rights

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I’m sure John Brennan, data-miner-in-chief, is not happy about this:

The new German justice minister says Berlin is not comfortable with an EU measure that would grant US authorities access to European banking data. Now it seems likely that the Germans may scupper the deal, which is supposed to be pushed through at an EU meeting in Brussels at the end of November.

The agreement was supposed to be laced up before others got involved in the tricky debate about data protection and individual rights. Now, though, it looks like European Union plans to push through an anti-terror agreement with Washington may not go ahead, thanks in part to the new German government.

It appears the US was trying to push this agreement through before the Lisbon Treaty goes into effect on December 1 (and until what appears to be the SWIFT server is locked up behind a secure wall in Switzerland), ensuring that this measure would get extensive debate.

France, Austria and Finland have also expressed reservations, particularly regarding to the speed with which the new measure was being pushed through. Dec. 1 is the date when the new Lisbon Treaty goes into effect. The reform agreement grants the European Parliament new powers of control over decisions such as the one under consideration — and that means lengthy debate.

[snip]

[German Justice Minister Sabine Leutheusser-Schnarrenberger] added: “I consider the attempt to push this (deal) through the European Union just one day before the Lisbon Treaty comes into effect to be very unfortunate. It is a snub directed at the European Parliament, a parliament which has been critical of this deal and which, after the Lisbon Treaty comes into effect, will have a right to help make this decision.”

One of the things that is apparent from the EFF data dump is that the Bush Administration (and presumably the Obama Administration) were kluging together surveillance with US-based collection and other kinds of collection overseas. Several times in the debate leading up to the 2008 FISA Amendments Act, DOJ officials would caution against saying the FISA Court had “authorized” some collection, because the collection in question was illegal in the country in which the collection would take place. So I’m particularly interested in this debate.

If nothing else, the Europeans may force Americans to admit that they’re in the business of wholesale hoovering of information, and not the carefully targeted collections they like to claim they’re getting.

EFF FOIA Working Thread, Two

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This will be another working thread on the EFF FOIA Documents. Here was the first working thread.

The two sets of documents are:

And here’s the Vaughn Indices DOJ earlier submitted on these documents to help you figure out what they said they had.

For more on what’s in the EFF docs, MadDog and Jim White have a bunch of comments on the documents in this thread.

More efforts to prevent Glenn Fine from doing the IG review

In yesterday’s thread, I noted that Rockefeller’s office was making efforts to ensure that an intelligence IG led the IG audit. On page 7 of this OIP document, there’s more detail as to why they were trying to do so, from another of Rockefeller’s staffers.

On Wednesday, you indicated that the Oversight sectlon (section o) would be problemat¡c lf the DOJ lG was empowered to review NSA’s compliance with acquis¡tion and minimization procedures. Does the language in Wednesday’s draft solve this. problem? The draft indicates that the various lGs (includlng the DOI lG) are authorlzed to revlew “the compliance of their agency or element,” The addltlon seems to prevent the DOJ lG from reviewing  NSA complíance, but we wanted to get a sense of whether you thought the revlsed language would work.

The question is, why did they want to do that? Because Fine would have found something illegal?

More on foreign power employees

Also yesterday I pointed to some concerns about how to wiretap employees of foreign powers overseas. Here’s more (page 8) on that from a Rockefeller staffer.

An authorization under subsection (a) shall not be used to direct surveíllance at a person reasonably believed to be located outside the Uníted States who is known to be a United States person, unless the Attorney General determines that there is probable cause to believe that the person is a foreígn power, agent of a foreign power, or an officer or employee of a foreign power.

Again, the distinction between agent and employee is critical to them for some reason.

More discussion of other ways to conduct surveillance

In an earlier thread, we had some discussion (page 11) about what the other ways to conduct surveillance would be–including a physical search of stored communication. Does that cover all of this reference?

Does that put us in a place whre we have to use electronic methods when perhaps there is a better non-electronic way to do it? (And could be more precise to do it that way).

Bush’s super-human means

I’m struck by this passage (page 40) on SJC’s attempt to strengthen the exclusive means language.

When I think about lt, maybe the title ls helplng us because lt talks about “exclusive statutory “authorities” which ls not the authorlty relled upon by the President (constitutional authorities). Maybe they are unwittingly maklng an argument that will help us, My recollection ls that the debatè over exclusive means was over whether to use exclusive means or exclusive statutory means, Exclusive means won. Thís might inject even more doubt Into the process, although it has the unpleasant effect of providing less flexibility in this area,

First, this is just one of many examples where the DOJ folks treat Congress as the opponent.

But it also reiterates that there’s stuff going on that Bush wasn’t authorizing by statute, but through his own AUMF bullshit power.

Recall, too, that Feingold has repeatedly tried to get Holder to fulfill his promise to withdraw the White Paper and related opinions from 2006 basing authority on AUMF. I wonder if this is why. Which means Obama–then in the Senate–had no clue that there was this extra-legal shit when he pushed for FISA.

Exclusive means for some kinds of electronic surveillance

This passage (page 52) seems to get at why they had to rewrite exclusivity–and how Bush claimed to have not violated the exclusivity provision already under FISA.

Louis’s point is that the Administration and the Vice Chairman had agreed to the 1978 statement on exclusivity,

OK, Strike thc title VII rcfercnce, but make clear that thc reference to eleclronic surveillance is as defined in 1978, i.e., not as limited by thc PAA or this bill.

For exampte, “electronic surveillance (as dcãncd by section 101, without the limitation in section 701),” (or as defined in section 101, as originally enacted in the FISA of t978).

The net would be this: exclusívity would be no lcss than it was in 1978. If there are acquisition activities that never fell under FISA, FISA would not be oxclusive for them, But if they would be elechonic surveillance but for the PAA and this bill, FISA would continue to be exclusive for them.

It’s from Mike Davidson, a Rockfeller staffer. He seems to be working against a background in which McConnell and the Bush Administration had to be convinced to even keep exclusivity in the bill. But that they’re carving out space–with apparent Democratic acquiescence–such that FISA is only exclusive for some sorts of activities. Perhaps, for example, it’s exclusive for wiretapping, but not for collection of signals themselves?

And here’s an email (page 54) from the same general chain, in which DiFi’s staffer tries to nail down precisely what is going on.

Chapters 119 and 121 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance (as defined in Section 101(f), regardless of the limitation of section 701) and the interception of domestic wire, oral, or electronic communications may be conducted.

I am interested in following-up, when the information is available, on any type of collection for which this authority would not be exclusive (as we started to discuss last night).

So at this point DiFi’s staffer didn’t even know what they were trying to carve out.

The EFF FOIA Working Thread

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

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

The two sets of documents are:

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

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

Statutes of Limitation

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

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

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

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

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

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

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

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

Read more →

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more →

Obama DOJ Continues To FlimFlam Judge Lamberth On State Secrets

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The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out Read more →

Buying Off Victims of Illegal Wiretapping at $3 Million a Pop…

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…That could get expensive.

That’s what the federal government agreed to pay to Richard Horn to settle his 15-year old suit against the government for wiretapping him in Burma.

The U.S. Government has agreed to pay $3 million to a former Drug Enforcement Administration official who claims he was spied on by a CIA agent and a U.S. diplomat while working at the U.S. Embassy in Burma more than a decade ago.

The settlement of a long-running lawsuit brought ex-DEA agent Richard Horn was filed tonight in U.S. District Court in Washington.

Still unsettled, though, is whether this will convince Royce Lamberth to ignore all the lies the CIA told the Court in an attempt to use state secrets to make the suit go away.

The government states that “a significant reason” it entered into the settlement is to pursue the possibility of vacating two recent court orders from Lamberth relating to the issues of state secrets and the issuance of clearances. One of the orders the government is seeking to vacate was cited by the plaintiffs in the most viable legal challenge to the Bush Administration’s warrantless wiretapping program, Al Haramain Islamic Foundation v. Obama.

“Leaving intact non-precedential rulings that resolve significant constitutional questions involving separation of powers does not serve the public interest, particularly when the parties have agreed to forego further review to achieve a consensual resolution,” the Justice Department wrote in a separate motion filed tonight.

Update: Josh changed the last quoted paragraph–which makes it all that more interesting. The government is trying to erase Lamberth’s ruling on state secrets. We’ll see how Lamberth feels about that.

If It’s [Was] Friday, It Must Be State Secrets, Hiding Abuse of Power, in the 9th Circuit

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photo: Diane M. Byrne via Flickr

photo: Diane M. Byrne via Flickr

A quick word about scheduling. I’m going to take a break from Dick Cheney for a bit so I can hit some other issues. Later today or tomorrow, I’m going to take a look at the torture documents which Mary and MadDog started exploring in this thread. But then I need to turn back to PATRIOT in anticipation of the mark-up of the House bill, which is probably going to be on Wednesday.

But for the moment, I want to take a look at Eric Holder’s state secrets invocation yesterday.

The case is one of the remaining surveillance suits for the government’s “dragnet” collection of telecom signals, parallel to EFF’s Jewel case. The government had already invoked state secrets in 2007. But after the Jeppesen decision this spring, EFF reactivated the case (yeah, I’m sure this is not the legal term). And so now, to try to throw the case out again, the government is reasserting its state secrets invocation.

The case is interesting for a couple of reasons. First, the timing. The Administration is invoking state secrets under its “old-is-new” state secrets policy, something Holder focuses on in his statement on the invocation.

Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation.  We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.  The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion.  A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information.  Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

As such, it appears that DOJ wants to pitch this invocation as hopey-changey proof of the reasonableness of its new process.

But then, even in his statement, Holder is invoking state secrets in a 9th Circuit case assuming that the government will win its Jeppesen case. Holder describes how DOJ attempted to carve out a part of this suit that could go forward while still protecting state secrets.

As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so.

That statement assumes the Executive–and not the Courts–gets to decide how much of a case gets thrown out with a state secrets invocation, an assumption that flies in the face of the Jeppesen decision. Curiously, though, a statement making that assumption also ends with the kind of humility we haven’t seen from the Holder DOJ in related suits.

Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances.  As always, we will respect the outcome of that process.

Read more →

DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →