How Abu Zubaydah’s Torture Put CIA and FBI in NSA’s Databases

/3 Comments/in , /by

I said yesterday that the plan, going as far back as 2002, was to let CIA and FBI tap right into NSA’s data. I base that on this explanation from Keith Alexander, which he included in his declaration accompanying the End to End Report that was submitted sometime after October 30, 2009.

By the fall of 2002, the Intelligence Community had grown increasingly concerned about the potential for further attacks on the United States. For example, during 10 to 24 September 2002, the Government raised the homeland security threat condition to “orange,” indicating a high likelihood of attack. In this context, in October 2002 the Directors of NSA, CIA, and FBI established an Inter-Agency Review Group to examine information sharing [redacted] The group’s top recommendation was that NSA create a common target knowledge database to allow joint research and information exchanges [redacted].

Of course, we now know that the threat level was high in September 2002 because the government was chasing down a bunch of false leads from Abu Zubaydah’s torture.

Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

“We spent millions of dollars chasing false alarms,” one former intelligence official said.

In other words, the justification for creating a database where CIA and FBI could directly access much of NSA’s data was a mirage, one created by CIA’s own torture.

All that’s separate from the question of whether CIA and FBI should have access directly to NSA’s data. Perhaps it makes us more responsive. Perhaps it perpetuates this process of chasing ghosts. That’s a debate we should have based on actual results, not the tortured false confessions of a decade past.

But it’s a testament to two things: the way in which torture created the illusion of danger, and the degree to which torture — and threat claims based on it — have secretly served as the basis the Executive uses to demand the FISA Court permit it to extend the dragnet.

Even the current CIA Director has admitted this to be true — though without explicitly laying out the import of it. Isn’t it time we start acknowledging this — and reassessing the civil liberties damage done because of it — rather than keeping it hidden under redactions?

USA Freedom Must Explicitly Require NSA and CIA to Comply with Law’s Minimization Procedures

/12 Comments/in /by

I know I’ve had a lot of mostly unenthusiastic things to say about even Pat Leahy’s version of the USA Freedom Act.

  • It explicitly exempts FBI from counting back door searches
  • It may not do anything to existing non-electronic communication bulk programs, because it probably permits the use of corporate persons as Specific Selection Terms
  • The “connection chaining” may permit expanded access to smart phone data
  • It retains USA Freedumber’s “foreign intelligence” retention language

Having read about half of last week’s Internet Dragnet document dump so far, I’m increasingly worried about two details I’ve already raised.

I suspect, unless the law explicitly imposes minimization procedures on NSA (and CIA, which reportedly operates the bulky Western Union dragnet), they will evade the bill’s most stringent minimization procedures.

As I noted in November and PCLOB noted in January, the business records provision was explicitly written for FBI, not other intelligence agencies. As a result, the language in it requiring minimization procedures did not — and still would not under Leahy Freedom (to say nothing of USA Freedumber) — require minimization procedures from Agencies beyond FBI. For example, unless I’m misreading how the law would be implemented, this is what would still be in place with regards to minimization procedures.

Applications have to lay out minimization procedures. But the law only requires they apply to FBI.

(D) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

The judge reviews the minimization procedures in the application to make sure they comply with (g), and then includes an order they be followed in his order approving the application.

(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b) and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

And as I’ve already noted, the entire section (g) devoted to minimization explicitly applies to just FBI.

The Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this subchapter.

What’s particularly crazy about this is that the clause was changed to take out deadlines imposed in the 2006 renewal. In other words, they changed this clause, but left in the limits for most minimization procedures to just FBI.

Read more →

Working Thread, Internet Dragnet 4: Later 2009 Documents

/1 Comment/in /by

The early focus on the dragnet violations was on the phone dragnet. At the end of March, however, DOJ started preparing to look more closely at the PRTT program in late April 2009, which may be why some of the following violations got disclosed to Reggie Walton in conjunction with a May reauthorization application. The CIA, FBI, and NCTC access to the PRTT seems to have been a bigger issue than the BR  FISA data.

All that said, when the NSA completed its End-to-End report sometime in fall 2009, they didn’t report all that much beyond the violations noted in May (though they did note the NSA did not shut down some automatic process when it said it did), mostly by claiming they didn’t realize the original dragnet order meant what it said (in spite of the violation in the first dragnet order).

It was only after that that they noticed FISC NSA had been collecting content from the start of the program (see document O). Once they admitted that, NSA decided not to reapply for a Primary Order, and Reggie Walton issued a supplemental order (document E) ordering them not to collect any more, but also not to access the data they did have. Only after that did DOJ submit the End-to-End report, accompanied by DOJ and Keith Alexander reports that admitted the content violation.

See also Working Thread 1, Working Thread 2, Working Thread 3, and Internet Dragnet Timeline. No one else is doing this tedious work; if you find it useful, please support it.

Read more →

The Majority of 215 Orders Come from Internet Companies that Refuse NSLs

/2 Comments/in /by

According to the new DOJ IG report on FBI’s use of NSLs, there are some Internet companies that have been refusing NSLs for some data since 2009 (this discussion appears on pages 71- 73).

The decision of these [redacted] Internet companies to discontinue producing electronic communication transactional records in response to NSLs followed public release of a legal opinion issued by the Department’s Office of Legal Counsel (OLC) regarding the application of ECPA Section 2709 to various types of information. The FBI General Counsel sought guidance from the OLC on, among other things, whether the four types of information listed in subsection (b) of Section 2709 — the subscriber’s name, address, length of service, and local and long distance toll billing records — are exhaustive or merely illustrative of the information that the FBI may request in an NSL. In a November 2008 opinion, the OLC concluded that the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL.

Although the OLC opinion did not focus on electronic communication transaction records specifically, according to the FBI, [redacted] took a legal position based on the opinion that if the records identified in Section 2709(b) constitute the exclusive list of records that may be obtained through an ECPA NSL, then the FBI does not have the authority to compel the production of electronic communication transactional records because that term does not appear in subsection (b).

For a number of reasons I wonder whether this pertains to Internet searches, rather than email communication.

In any case, because the Internet companies have apparently been successful at refusing these NSLs (there’s zero discussion in the unredacted section of court challenges, but they must have happened), FBI has been getting Section 215 orders instead. As a result, the bulk of the Section 215 orders in recent years have been for these kinds of Internet transaction records.

In the absence of a legislative amendment to Section 2709, [2.5 lines redacted]. [Deputy General Counsel of FBI’s National Security Law Branch] Siegel told us that the process of generating and approving a Section 215 application is similar to the NSL process for the agents and supervisors in the field, but then the applications undergo a review process in NSLB and the Department’s National Security Division, which submits the application to the Foreign Intelligence Surveillance Court (FISA Court). According to Siegel, a request that at one time could be accomplished with an NSL in a matter of hours if necessary, now takes about 30-40 days to accomplish with a standard Section 215 application.

In addition to increasing the time it takes to obtain transactional records, Section 215 requests, unlike NSL requests, require the involvement of FBI Headquarters, NSD, and the FISA Court. Supervisors in the Operations Section of NSD, which submits Section 215 applications to the FISA Court, told us that the majority of Section 215 applications submitted to the FISA Court [redacted] in 2010 and [redacted] in 2011 — concerned requests for electronic communication transaction records.

The NSD supervisors told us that at first they intended the [3.5 lines redacted] They told us that when a legislative change no longer appeared imminent and [3 lines redacted] and by taking steps to better streamline the application process.

We asked whether the disagreement and uncertainty over electronic communication transactional records has negatively affected national security investigations. An Assistant General Counsel in NSLB told us that the additional time it takes to obtain transactional records through a Section 215 application slows down national security investigations, all of which he said are time-sensitive. He said that an investigative subject can cease activities or move out of the country within the time-frame now necessary to obtain a FISA order. [my emphasis]

And bizarrely, the IG report doesn’t discuss the pending USA Freedom legislation — not even what appears retrospectively like HPSCI’s effort to turn this kind of production into programmatic orders.

There’s still a lot I don’t get from this discussion. But the explanation that the explosion of 215 orders (remember — with their attached minimization procedures) since 2009 stems from a couple of Internet companies sure is interesting.

Update: Page 124 reveals what the Administration wanted ECPA to include.

The proposed amendment would authorize the FBI to obtain name, address, local and long distance connection records (or sessions times and durations), length and types of service, telephone or instrument number (or other subscriber number or identity, including any temporarily assigned network address), means and source of payment (including credit card or bank account number), and records identifying the origin, routing, or destination of electronic communications.

Leahy’s Freedom Act May Not Change Status Quo on Records Other than Call Records

/2 Comments/in /by

Update: According to the DOJ IG NSL Report released today, the rise in number of Section 215 orders stems from some Internet companies refusing to provide certain data via NSL; FBI has been using Section 215 instead. However they’re receiving it now, Internet companies, like telephone companies, should not be subject to bulk orders as they are explicitly exempted. 

WaPo’s MonkeysCage blog just posted a response I did to a debate between H.L. Pohlman and Gabe Rottman over whether Patrick Leahy’s USA Freedom includes a big “backdoor” way to get call records. The short version: the bill would prevent bulk — but not bulky — call record collection. But it may do nothing to end existing programs, such as the reported collection of Western Union records.

In the interest of showing my work, he’s a far more detailed version of that post.

Leahy’s Freedom still permits phone record collection under the existing authority

Pohlman argues correctly that the bill specifically permits the government to get phone records under the existing authority. So long as it does so in a manner different from the Call Detail Record newly created in the bill, it can continue to do so under the more lenient business records provision.

To wit: the text “carves out” the government’s authority to obtain telephone metadata from its more general authority to obtain “tangible things” under the PATRIOT Act’s so-called business records provision. This matters because only phone records that fit within the specific language of the “carve out” are subject to the above restrictions on the government’s collection authority.  Those restrictions apply only “in the case of an application for the production on a daily basis of call detail records created before, on, or after the date of the application relating to an authorized investigation . . . to protect against international terrorism.”

This means that if the government applies for a production order of phone records on a weekly basis, rather than on a “daily basis,” then it is falls outside the restrictions. If the application is for phone records created “before, on, [and] after” (instead of “or after”) the date of the application, ditto. If the investigation is not one of international terrorism, ditto.

However, neither Pohlman nor Rottman mention the one limitation that got added to USA Freedumber in Leahy’s version which should prohibit the kind of bulk access to phone records that currently goes on.

Leahy Freedom prohibits the existing program with limits on electronic service providers

The definition of Specific Selection Term “does not include a term that does not narrowly limit the scope of the tangible things … such as–… a term identifying an electronic communication service provider … when not used as part of a specific identifier … unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis of production.”

In other words, the only way the NSA can demand all of Verizon’s call detail records, as they currently do, is if they’re investigating Verizon. They can certainly require Verizon and every other telecom to turn over calls two degrees away from, say, Julian Assange, as part of a counterintelligence investigation. But that language pertaining to electronic communication service provider would seem to prevent the NSA from getting everything from a particular provider, as they currently do.

So I think Rottman’s largely correct, though not for the reasons he lays out, that Leahy’s Freedom has closed the back door to continuing the comprehensive phone dragnet under current language.

But that doesn’t mean it has closed a bunch of other loopholes Rottman claims have been closed.

FISC has already dismissed PCLOB (CNSS) analysis on prospective collection 

For example, Rottman points to language in PCLOB’s report on Section 215 stating that the statutory language of Section 215 doesn’t support prospective collection. I happen to agree with PCLOB’s analysis, and made some of the same observations when the phone dragnet order was first released. More importantly, the Center for National Security Studies made the argument in an April amicus brief to the FISC. But in an opinion released with the most recent phone dragnet order, Judge James Zagel dismissed CNSS’ brief (though, in the manner of shitty FISC opinions, without actually engaging the issue).

In other words, while I absolutely agree with Rottman’s and PCLOB’s and CNSS’ point, FISC has already rejected that argument. Nothing about passage of the Leahy Freedom would change that analysis, as nothing in that part of the statute would change. FISC has already ruled that objections to the prospective use of Section 215 fail.

Minimization procedures may not even protect bulky business collection as well as status quo

Then Rottman mischaracterizes the limits added to specific selection term in the bill, and suggests the government wouldn’t bother with bulky collection because it would be costly.

The USA Freedom Act would require the government to present a phone number, name, account number or other specific search term before getting the records—an important protection that does not exist under current law. If government attorneys were to try to seek records based on a broader search term—say all Fedex tracking numbers on a given day—the government would have to subsequently go through all of the information collected, piece by piece, and destroy any irrelevant data. The costs imposed by this new process would create an incentive to use Section 215 judiciously.

As I pointed out in this post, those aren’t the terms permitted in Leahy Freedom. Rather, it permits the use of “a person, account, address, or personal device, or another specific identifier.” Not a “name” but a “person,” which in contradistinction from the language in the CDR provision — which replaces “person” with “individual” — almost certainly is intended to include “corporate persons” among acceptable SSTs for traditional Section 215 production.

Like Fedex. Or Western Union, which several news outlets have reported turns over its records under Section 215 orders.

FISC already imposes minimization procedures on most of its orders

Rottman’s trust that minimization procedures will newly restrain bulky collection is even more misplaced. That’s because, since 2009, FISC has been imposing minimization procedures on Section 215 collection with increasing frequency; the practice grew in tandem with greatly expanded use of Section 215 for uses other than the phone dragnet.

While most of the minimization procedure orders in 2009 were likely known orders fixing the phone dragnet violations, the Attorney General reports covering 2010 and 2011 make it clear in those years FISC modified increasing percentages of orders by imposing minimization requirements and required a report on compliance with them

The FISC modified the proposed orders submitted with forty-three such applications in 2010 (primarily requiring the Government to submit reports describing implementation of applicable minimization procedures).

The FISC modified the proposed orders submitted with 176 such applications in 2011 (requiring the Government to submit reports describing implementation of applicable minimization procedures).

That means the FISC was already requiring minimization procedures for 176 orders in 2011, only 5 of which are known to be phone dragnet orders. Read more →

Company B (Verizon? Sprint?) Stopped Playing Nice with FBI in 2009

/2 Comments/in , /by

I’m reading this DOJ IG report on NSLs — about which I’ll have far more later.

But given everything we’ve learned about NSA’s dragnet, I’m rather interested in footnote 156:

Company A, Company B, and Company C are the three telephone carriers described in our Exigent Letters Report that provided telephone records to the TCAU in response to exigent letters and other informal requests between 2003 and 2006. As described in our Exigent Letters Report, the FBI entered into contracts with these carriers in 2003 and 2004, which required that the communication service providers place their employees in the TACU’s office space and give these employees access to their companies’ databases so they could immediately service FBI requests for telephone records. Exigent Letters Report, 20. As described in the next chapter, TCAU no longer shares office space with the telephone providers. Companies A and C continue to serve FBI requests for telephone records and provide the records electronically to the TCAU. Company B did not renew its contract with the FBI in 2009 and is no longer providing telephone records directly to the TCAU. Company B continues to provide telephone records in response to NSL requests issued directly by the field without TCAU’s assistance.

I’m guessing Company B is Verizon, because it always comes second! Though it could also be Sprint.

Recall that Reggie Walton shut down Verizon production for part of 2009 (I’ll have posts reinforcing this claim sometime in the near future). Verizon may have started being a jerk about providing foreign calls records at that point which — at least technically were provided voluntarily. So that’s why it might be Verizon.

At the same time. Sprint is a good candidate because, at the end of the year, it demanded legal process from the phone dragnet. Also, it has challenged DOJ’s reimbursements, which has gotten it sued.

Given ongoing discussions about whether NSA gets all the phone records it’d like under Section 215 — and the explanation they’re missing cell records — I’m particularly interested in this development.

The Hospital Confrontation Heroes of Rule of Law Gutted Separation of Powers

/8 Comments/in , /by

Remember that cinematic story of how Jim Comey and Jack Goldsmith and Robert Mueller stood up to Bush and Cheney and forced them to shut down their illegal dragnet to defend the rule of law in 2004?

It turns out, what Comey and Goldsmith did in secret two months later was not so heroic. As I lay out over at Salon, the memo of law they used to get their illegal dragnet blessed by the FISA court argued both Judge Colleen Kollar-Kotelly and the Congress that passed the PRTT law in the first place had no choice but to cede to Executive power.

Essentially, they argued both she — an Article III judge — and Congress must have their power gutted to protect the president’s power.

[snip]

The same heroes of the hospital confrontation, lionized for the last decade for their courageous defense of the rule of law, thereby gutted the separation of powers, in secret. All to serve still more secrecy … and the power of the presidency they purportedly reined in two months earlier.

They may have won Bush — and themselves, who otherwise would have signed off on an illegal program — legal cover by doing so. But in the process they corroded the balance of powers enshrined by the Constitution, turning the FISC into a place where expansive executive branch programs get rubber-stamped in secret.

Here’s how they justified not getting Congress to write a new law to authorize the spying they themselves refused to approve.

The memo’s focus on Congress — at least what appears in unredacted form — is much more circumspect, but perhaps even more disturbing.

DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.

And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”

You remember that part of the Constitution where it says Congress passes the laws, unless the Executive Branch wants the laws to be secret, in which case they can do it?

Nope, neither do I.

Working Thread, Internet Dragnet Dump 3: Early 2009 Documents

/in /by

This group of documents — all released with this dump — all come from the first couple of months of 2009. The following is my best reconstruction of what they mean; please let me know if you catch any problems with it.

The government noticed Reggie Walton of the “alert function” violation in the phone dragnet on January 15. On January 28, he ordered further reporting on those problems; because he knew the Internet dragnet was similar, he also ordered the government to  “determine whether NSA bas been processing the electronic communications metadata in accordance with the terms of the Court’s orders.” In response, the government submitted documents M (Government’s Response) and N (Keith Alexander’s declaration), probably on February 15, 2009. While the report claimed (and NSA reported to Congress) only one Internet dragnet practice violated FISC’s orders, there were multiple practices that involved contact chaining beyond two hops, as well as chaining on US persons without First Amendment review. A number of these, however, remain redacted.

As part of report M, the government said it would voluntarily adopt additional oversight mechanisms, as described on page 6-7. One of those mechanisms was an assessment meeting including representatives from DOJ’s National Security Division and NSA’s Office of General Counsel.

Shortly thereafter (I suspect it was after February 25; it may have been between March 5 and March 13, because M and N appear to have been provided to Congress on March 5, the remainder on March 13), the government applied for another Internet dragnet order. That application consisted of AA (the application), BB (the NSA rep’s declaration), and HH (the 90-day report and the NSA/NSD meeting report).

The application reflects several changes from the previous one (see page 3 and 22), all of which reflect changes in response to the early phone and Internet dragnet disclosures. Of particular note, it removed all mention of “archives;” in the phone dragnet and it appears the Internet dragnet, NSA had used “archive” as a gimmick word to allow them to double dip in the dragnet data. In addition, it incorporates the things submitted as voluntary oversight improvements, especially the meeting reported in HH. They also added language about techs accessing the data, language which would change over the year.

The 90-day report was written after Walton started dealing with the violations. For example, it refers to a “broken” process (which happened with one of the phone dragnet fixes; this may have happened on February 20, but will need to double check). Also, it describes the End-to-End report. But it submits several methods of RAS approval (see page 7 of the 90-day report) that had been described in the Alexander declaration that Walton pointedly disapproved in his Primary Order (see page 10).

Walton also added the “additional oversight mechanisms,” which the government had presented as voluntary in their February report, as mandatory in his order.

See below the rule for individualized notes.  Read more →

WSJ Falsely Paints John “Bates Stamp” as Aggressive

/2 Comments/in /by

WSJ wrote a badly flawed article yesterday describing John Bates’ 2010 opinion reauthorizing the Internet dragnet, claiming the memo — which was released last November — was just declassified.

Newly declassified court documents show one of the National Security Agency’s key surveillance programs was plagued by years of “systemic overcollection” of private Internet communications.

[snip]

Some of the problems with Internet metadata previously were reported and have been part of a broad critique of the NSA’s surveillance activities since the Sept. 11, 2001, terror attacks. The new document from Judge Bates offers the most detailed accounting—even with more than a dozen pages blacked out—of what those problems were.

Sure, ODNI didn’t explain that the opinion — and three other documents released — had been released before, one on multiple occasions. But those of us who read the opinion with the first release, rather than offering up unrepresentative quotes, recognized Bates’ memo as one of the seminal releases from last year. And contrary to WSJ’s claim, the public record (including Claire Eagan’s opinion, which cites from it) shows the opinion to date to 2010.

Even in this supposed actual reading of the document, however, WSJ gets it wrong.

The judge’s order ultimately reauthorized the program, with more stringent conditions than the government had sought.

Sure, Bates didn’t permit NSA unrestricted access to illegally collected records. But Bates also approved what was described as an 11- to 24-fold increase in collection.

The current application, in comparison with prior dockets, seeks authority to acquire a much larger volume of metadata at a greatly expanded range of facilities, while also modifying — and in some ways relaxing — the rules governing the handling of metadata.

Best as we can tell given the redactions, Bates approved that part of the request. Aside from imposing a few more training requirements, his biggest denial pertained to some — but not all — of the Internet dragnet data the government collected since the beginning of the program.

So while it is true that Bates wrote a lot of scathing things about the conduct of the program, he also turned around and vastly expanded it.

I raise all this not to be an asshole (though it would be nice if the WSJ had issued a correction, as its author retweeted my tweeted correction). I raise it for two reasons.

First, the WSJ pitches this as “the Judge who doesn’t like FISA reform was very critical of the Administration’s performance.”

Judge Bates has been the designated spokesman for the judiciary opposing several proposed changes to the structure of the Foreign Intelligence Surveillance Court, particularly the addition of a special advocate to represent privacy interests.

By not reporting that Bates vastly expanded this program in spite of its persistent violations, WSJ wrongly pitches him as a credible judge of what makes the FISC effective, rather than as Exhibit One for why it should be abolished.

Moreover, the documents that actually were newly released the other day suggest a very different narrative for what happened between 2009 and 2010, for how Bates came to summarize the many failings of the program but expand the program.

They show, first of all, that Reggie Walton was dealing with the phone and Internet dragnets in tandem throughout; Bates had no discernible role — aside from his intervention on August 4, 2009, after Reggie Walton had already shut down part of the phone dragnet program. The documents released this week make it clear Walton, not Bates, was the fact-finder who discovered the Internet dragnet had never complied with FISC guidelines. Bates had to repeat that scathing language in his opinion, because Walton had already laid it out.

And then, after Walton shut down the Internet dragnet, at a time when NSA continued to ignore his orders, when orders were terse, things began to change.

That’s when we begin to see solicitous letters — “Let me once again thank both you and your staff for  your consideration” —  to Bates, now the decision-maker on whether or not the government could resume a program that had illegally wiretapped Americans for 5 years.

It’s that guy who capitulated to pretty talk, expanding both the Internet dragnet and the upstream 702 collection, even as he laid out how both had been illegally wiretapping Americans, who says an advocate actually speaking for privacy would ruin the FISC. That’s the narrative we should get from this recent document dump, not that Bates was in any way anything but a Bates stamp.

Walton was by no means a perfect steward of the secret court. But Bates demonstrates why it cannot and does not fulfill its function.

Ashcroft, Comey, Goldsmith, and Baker: “All” Is the “Best” Reading of “Relevant”

/5 Comments/in /by

Four MusketeersTowards the end of the Memorandum of Law in support of the Internet dragnet — which was signed by those guys ———-> — DOJ makes a claim that its reading of “relevant” to mean “almost all” was the best possible reading.

Here, by contrast, reading the term “relevant” to permit the collection of this critical information during wartime is a construction rooted in the text that requires no stretching of the ordinary meaning of the terms of the statute at all. In fact, for all the reasons outlined above, interpreting section 402 to authorize the collection the Government has requested in the best reading of the plain terms of the Act.

This is why you should not have secret courts.

I get making an aggressive push to authorize dragnet surveillance.

I get mining old and foreign dictionaries to come up with a definition that suits your needs.

But after you’ve made your best ditch effort to stretch the meaning of words, secretly, beyond all recognition, don’t then, secretly, pat yourself on the back pretending that wasn’t the game you just pulled.

But hey. Who’s the chump? After all, we now know that Misters Ashcroft, Comey, Goldsmith, and Baker pulled this off.

Yet no one is making any effort to put the English language back on some kind of sane footing. Nothing in any of the “reform” efforts before Congress attempts to put sanity back into the word “relevant.”