Working Thread, Section 215 White Paper

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I’ve already had some things to say about the White Paper the Administration released on its metadata dragnet program and will have several more formal posts. But I wanted to capture all my notes in one place.

Page 1:

telecommunications service providers

Note they don’t say telecoms. That’s because, for this program to do what they say, they also have to be getting the metadata from VOIPs. There are redactions in the Congressional documents that probably address this as well.

The Court first authorized the program in 2006, and it has since been renewed thirty-four times under orders issued by fourteen different FISC judges.

Note that it doesn’t say the program started in 2006. That’s because it started in 2001, as part of Bush’s illegal program. That’s key because it means it was in place when Congress passed the 2006 reauthorization of PATRIOT which included “relevant to” language, but the Exec didn’t brief on how that was going to be used.

This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States.

This is just the first of many many many statements in this White Paper that are unbelievably sloppy about referring to what should only be “international” terrorists (that is, terrorists with some tie to an international terrorist group). I’ll have far more to say about it, but this sloppiness led me to contemplate what would happen if this dragnet could be used for domestic terrorists — meaning authorities could see how (say) Sovereign citizens had ties to white supremacists or how anti-choice activists had ties to clinic bombers.

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Mike Rogers Says 4 Briefings Recently Makes Up for Withholding Information before PATRIOT Act Vote

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Here’s House Intelligence Chair Mike Rogers’ response to the White Paper’s revelation, backed by Justin Amash’s reports, that he didn’t invite all members of the House to read notice of the Section 215 dragnet.

The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work. Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered. Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff. The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country. [my emphasis]

So even according to Mike Rogers, Mike Rogers provided briefings to members to answer the questions they’d have no notice they needed to ask before reauthorization of the PATRIOT Act because Mike Rogers hadn’t provided the explanation of what they might want to ask questions about.

And since Edward Snowden exposed all this, he has had 4 briefings.

Nowhere in Rogers’ statement does he deny he failed to pass on the notice that read,

We believe that making this document available to all members of Congress, as we did with a similar document in December 2009, is an effective way to inform the legislative debate about reauthorization of Section 215.

Which, I take, is additional confirmation (in addition to the White Paper and reports from Congress) he failed to pass on notice that DOJ and the Administration claimed they wanted shared with all of Congress.

The legality of the 215 dragnet depends, in part, on whether or not the Executive briefed Congress. And because of Mike Rogers, it appears that that legal case is beginning to crumble.

This Independent Technical Review Group Brought to You By the Booz Allen Hamilton Director of National Intelligence™

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When Obama announced Friday the formation of a technical advisory group to review our SIGINT programs, I naively believed “outside” and “independent” meant “outside” and “independent.”

Fourth, we’re forming a high-level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in the haystack of global telecommunications. And meanwhile, technology has given governments — including our own — unprecedented capability to monitor communications.

So I am tasking this independent group to step back and review our capabilities — particularly our surveillance technologies. And they’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy — particularly in an age when more and more information is becoming public. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy, and our foreign policy. [my emphasis]

I also naively believed this was an effort to take up Ron Wyden and Mark Udall’s call to get an independent review of the program, which the rest of the Senate Intelligence Committee thwarted a year ago.

We also proposed directing the committee’s Technical Advisory Group to study FISA Amendments Act collection and provide recommendations for improvements. We were disappointed that our motion to request that the Technical Advisory Group study this issue was ruled by our colleagues to be out of order.

Nope!

In the memo Obama just released ordering James Clapper to form such a committee, those words “outside” and “independent” disappear entirely.

I believe it is important to take stock of how these technological advances alter the environment in which we conduct our intelligence mission. To this end, by the authority vested in me as President by the Constitution and the laws of the United States of America, I am directing you to establish a Review Group on Intelligence and Communications Technologies (Review Group).

The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust. Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013. [my emphasis]

And neither Obama nor the Intelligence Committees get to hear from this Group themselves. It all goes through James Clapper.

What on Friday was an outside and independent group is now branded by the Director of National Intelligence as the Director of National Intelligence Group.

At the direction of the President, I am establishing the Director of National Intelligence Review Group on Intelligence and Communications Technologies to examine our global signals-intelligence collection and surveillance capability.

The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.

Huh. It took exactly 72 hours for that good idea to fizzle into a navel gaze directed by the guy who lies to Congress.

65 2010 House Freshmen Re-Authorized PATRIOT with No Notice of Section 215 Dragnet

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The White Paper claims that the Section 215 dragnet is legal, in large part, because Congress has twice extended the PATRIOT Act without changing the terms of Section 215. A key of part that argument rests on the Administration’s claim that it gave notice to Congress about the dragnet.

Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.

But as I noted, the White Paper actually suggests that a big group of Congressmen — most of the 93 members elected in 2010 — got no notice. While the Administration provided House Intelligence Chair Mike Rogers with a description of the program, he appears not to have invited all members of the House to read it, as Dianne Feinstein invited all members of the Senate to do.

Since I wrote that post, Justin Amash confirmed that his class did not get an invitation to read the notice.

Less than two weeks ago, the Obama administration released previously classified documents regarding ‪#‎NSA‬’s bulk collection programs and indicated that two of these documents had been made available to all Members of Congress prior to the vote on reauthorization of the Patriot Act. I can now confirm that the House Permanent Select Committee on Intelligence did NOT, in fact, make the 2011 document available to Representatives in Congress, meaning that the large class of Representatives elected in 2010 did not receive either of the now declassified documents detailing these programs.

I double checked via Twitter, and Amash confirmed that Rogers just never invited the House to read it.

Just 7 2010 freshmen (Sandy Adams, Trey Gowdy, Tim Griffin, Joe Heck, Tom Marino, Ben Quayle, and Dennis Ross) were on either the House Intelligence Committee or the House Judiciary Committee at the time, and therefore presumably had the opportunity to learn about the dragnet there.

The PATRIOT Act Reauthorization passed by a broad 250-153 margin.

But by my calculation, 65 of those yes votes were freshmen who had never had opportunity to learn about the dragnet. Many of them would have presumably voted to reauthorize it knowing about the dragnet (and Mike Pompeo, who played a key role in defeating Amash-Conyers, was a non-vote who would clearly vote yes). But in theory at least Mike Rogers chose not to inform a sufficiently large group that it could have swung the vote.

The Administration claims it informed Congress about the dragnet. But whether acting on his own or at the behest of the Administration, Mike Rogers left a sufficiently large group in the dark so as to negate the validity of that claim.

The White Paper’s Selective Forgetting on FCC Phone Record Retention History

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In two different places, the White Paper justifying the Section 215 dragnet discusses the FCC’s requirements that telecoms retain phone records.

First, without describing what current requirements are or where they came from, it claims current requirements are insufficient to meet national security needs.

If not collected and held by the NSA, telephony metadata may not continue to be available for the period of time (currently five years) deemed appropriate for national security purposes because telecommunications service providers are not typically required to retain it for this length of time.

But then, later, it uses the FCC requirement that telecoms retain records for 18 months as part of its claim that it is no big deal that the government uses these orders to collect information prospectively.

Section 215 orders are not being used to compel a telecommunications service provider to retain information that the provider would otherwise discard, because the telephony metadata records are routinely maintained by the providers for at least eighteen months in the ordinary course of business pursuant to Federal Communications Commission regulations. See 47 C.F.R. § 42.6. In this context, the continued existence of the records and their continuing relevance to an international terrorism investigation will not change over the 90-day life of a FISC order.

It’s a pretty breathtaking selective reliance on FCC regulations. Because, as this post explains, the current 18-month retention requirement actually came about in response to a DOJ request in 1985 based, in part, on their need to access the records for the two purposes for which Section 215 can be used against Americans, terrorism and spying.

Not only does this federal regulation provide a legal retention obligation, but it is also unrelated to the “business purposes” of the telephone companies and in fact was promulgated by the FCC at the specific request of the DOJ in order to aid in terrorism investigations.  The retention period had previously been six months, but the DOJ petitioned the FCC to extend it precisely because such telephone records “are often essential to the successful investigation and prosecution of today’s sophisticated criminal conspiracies relating, for example, to terrorism . . . and espionage.” The FCC therefore extended the legal retention period for as long as the DOJ said was necessary.

DOJ/NSA/ODNI may believe that this regulation, which became effective in 1986, is outdated or no longer adequate, but pretending that it (and many similar state regulations) doesn’t exist or that those agencies couldn’t have done more to update or expand this regulation to suit the Executive branch’s current “needs” undermines their argument.

And, as the post further describes, at the precise moment when the government was rolling out the adoption of this use of Section 215 in 2006, the FCC asked but DOJ did not push for an extension of the retention requirements.

In fact, in early 2006, the FCC itself proactively solicited comments on the 18-month retention regulation and the DOJ submitted these comments which — in light of what we know now and the government’s current arguments — is rather remarkable.

First, the DOJ’s comments are dated April 28, 2006, which was reportedly just a month before the DOJ/FBI securedthe first Foreign Intelligence Surveillance Court order for bulk collection of U.S. telephone metadata for the NSA under the “business records” provision.

Second, while the DOJ noted problems with the regulation (including that “some” phone companies read it narrowly and argued it would not apply if certain billing methods were used) the DOJ nevertheless stressed the regulation’s continuing importance for counterterrorism, stating that telephone records were a “critical tool in the fight against global terrorism” that had “enabled . . . national security agencies to prevent terrorist acts and acts of espionage.” Moreover, the DOJ stressed its role in setting the legal retention period at 18 months.

Third, the DOJ in fact suggested — in a footnote, near the end — that the FCC “should explore” whether “the existing 18-month rule should be extended,” yet surprisingly the DOJ did not forcefully argue for such an extension.

Perhaps the second White Paper citation above reveals why: because, while DOJ didn’t want to simply extend the retention requirement to the 5-year period it claims it needs (because then it wouldn’t have an excuse to create its own database), it needed the existence of a retention requirement that was longer than its reauthorization period to justify the prospective collection of records (which is legally one of the most egregious parts of this practice).

But now that we know how the timing all fits together, DOJ’s actions in response FCC’s invitation for a longer deadline repeat the Bush Administration’s earlier implementation of the illegal wiretap program even as Congress was legislating changes to FISA: it shows there were more appropriate means of accomplishing the desired objective that the government chose not to use.

Mind you, one more thing is almost certainly going on: with expanded use of VOIP, the phrase “telecommunications service provider” has expanded meaning over what it had in 1985, and VOIP providers presumably present an entirely different set of records collection issues. And FCC regulations apply very differently to cable providers than they do to telecom providers.

All that said, it’d be nice if DOJ would just commit to whether these FCC regulations exist for the precise purpose that DOJ has chosen instead to use Section 215 for.

Mike Rogers’ Double Secret Invitation to Dance

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I’m working on a very weedy post on the White Paper’s duplicitous presentation of what it calls support for Congress for the Section 215 dragnet.

But I’d like to compare a claim from this WaPo story on how secrecy makes it difficult for Congress to exercise oversight with a detail from the White Paper.

Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.

“If you have individual members who say they don’t have time to be on the intelligence committee, then I say get off the intelligence committee,” he said.

Ruppersberger said all members benefit from an expert staff and a push in recent years for greater bipartisanship on the panel. The issues are complex and time-consuming, he said, “but we have to learn them. We have to hold these agencies accountable, but we also have to give them the resources they need to protect our country.”

Sen. John D. Rockefeller IV (D-W.Va.), a member of the Senate Intelligence Committee who expressed anger that Congress was kept in the dark about interrogation and surveillance tactics under the George W. Bush administration, now feels that Congress has what it needs. He credits Feinstein and the Senate panel’s ranking Republican, Sen. Saxby Chambliss of Georgia, for inviting every senator into the committee offices to examine classified materials.

“The intelligence oversight committees have kicked the tires on these programs very hard, with hearings and legislation and oversight, and the programs have overwhelming bipartisan support on these committees,” a Rockefeller spokeswoman said.

At this point in the story, I started wondering why the WaPo made no mention of this Guardian report, which documented what the House Intelligence Committee’s responsiveness was really like.

Rep. [Morgan] Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for “access to the classified FISA court order(s) referenced on Meet the Press this past weekend”: a reference to my raising with host David Gregory thestill-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.

In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC “reviews and critiques” of the NSA. He stated the rationale for his request: “I took an oath to uphold the United States Constitution, and I intend to do so.”

Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read about Yahoo’s unsuccessful efforts in court to resist joining the NSA’s PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC’s ruling requiring Yahoo to participate in PRISM.

On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.

The Congressman received no response to any of his requests.

The Guardian story also reveals how the House Intelligence Committee voted against giving Alan Grayson material, and quotes Justin Amash saying he had similar difficulties getting information.

But I also wondered, since this WaPo report was clearly written in part to assess claims in the White Paper that Congressional approval has been a key part of this program, why it didn’t quote these two passages:

In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010);

[snip]

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011).

They describe the two notices the Intelligence Community sent the Intelligence Committees during PATRIOT Act reauthorization describing the phone and Internet dragnets.

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Dictionary Arbitrage and Section 215: “Relevant”

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There’s an odd footnote in the White Paper the Administration released to justify its Section 215 dragnet.

3 The word “tangible” can be used in some contexts to connote not only tactile objects like pieces of paper, but also any other things that are “capable of being perceived” by the senses. See Merriam-Webster Online Dictionary (2013) (defining “tangible” as “capable of being perceived especially by the sense of touch”) (emphasis added).

I’m interested in it because it seems to prepare us all to discover that the Administration has been getting things–like DNA, screen captures, and similar–with Section 215 that are absurd.

But I’m also interested because the Administration chose to use Merriam-Webster’s Online Dictionary. A good American dictionary — and the most up-to-date version!

Which is why I found it so suspicious that the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

To create this dragnet, after all, the Administration has had to blow up the meaning of “relevant” beyond all meaning. And they had to dig up an old British tome for this particular, all-important definition?

So I looked up how the American Merriam-Webster online dictionary defines “relevant.” Here are the first two definitions:

a : having significant and demonstrable bearing on the matter at hand

b : affording evidence tending to prove or disprove the matter at issue or under discussion <relevant testimony>

“Having significant and demonstrable bearing on the matter and hand.” Not, “possibly maybe having a teeny fraction bearing on the matter and hand.” But a “significant and demonstrable bearing” on a terrorist investigation, in context.

So the Administration apparently looked up “relevant,” discovered it proves our point — that their use of the term is totally ridiculous — and kept digging through old dictionaries until they could find one that proved their point. (Update: Read this entire comment from Adam Colligan for more on what the dictionaries say.)

The online Oxford dictionary, by the way, provides this as the first definition for “relevant:”

closely connected with the subject you are discussing or the situation you are thinking about

As with all absurd arguments in DC, it depends on what the definition of X is.

Obama’s Credibility Trap

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President Obama just stood before the nation and said,

And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

Even as he was speaking, his Administration released a document that said, in part,

Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures.

While (as I will show in a future post), Obama’s Administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009.

Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report suggests that ruling may pertain to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNI’s Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.)

As Shane Harris astutely describes, all of this kabuki is designed solely to make people feel more comfortable about these dragnets.

And the President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.

“The question is, how do I make the American people more comfortable?” Obama said.

Not that Obama’s unwilling to make any changes to America’s surveillance driftnets — and he detailed a few of them — but his overriding concern was that people didn’t believe him when he said there was nothing to fear.

But the President just stood up and claimed the government hasn’t abused any of these programs.

It has, by its own admission, violated the rules for them.

Meanwhile, Ron Wyden has already released a statement applauding some of these changes while noting that Obama is still minimizing how bad the violations have been.

Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act. I believe that this provision requires significant reforms as well and I will continue to fight to close that loophole. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy.

Ultimately, details of these violations will come out, and are on their way out in some form already.

If this press conference was designed solely to make us feel better, wouldn’t Obama have been better advised to come clean about these violations than to pretend they don’t exist?

 

BREAKING! Information “is collected” on millions of Americans

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Obama just gave a press conference to announce some changes to FISA. They include four things:

  1. Making some changes to the dragnet program
  2. Appointing a privacy officer to do for NSA what DOJ’s IG has done competently in the past but isn’t encouraged to do now
  3. Appointing an adversary for major decisions at FISC to represent civil liberties’ side
  4. Having a committee review the programs technically to see if we can improve them (this was something Ron Wyden and Mark Udall pressed for last year but got shot down on)

In addition, the Administration released a pretty useless white paper on the dragnet program. I’ll have more substantive comments about it later, but for now, note this sentence:

Likewise, the program does not violate the First Amendment, particularly given that the telephony metadata is collected to serve as an investigative tool in authorized investigations of international terrorism. [my emphasis]

Yeah, sure, they don’t even try to offer some explanation of how an associational database of all Americans doesn’t violate the Freedom of Assembly.

But at least they’re finally admitting they do too “collect” data on millions of Americans.

It’s well past time to fire James Clapper.

Update: Bobby Chesney offers some real analysis. Note I got the order wrong and the Privacy Officer bullet is actually a broader “more transparency.”

NSA-Speak — Timely: (Adj.) 2-Month Delay

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For some reason, this Ellen Nakashima story covering parts of what CNN, Wired, and I have already reported is generating a lot of attention today.

While I’m grateful that more people are catching on to what I’ve been harping on for months — that NSA justifies its entire Section 215 metadata dragnet with a case involving the transfer of less than $10,000 to al-Shabaab — there’s one point that further demonstrates the absurdity of the claim that Nakashima didn’t cover.

She quotes government officials repeatedly talking about the importance of the 215 dragnet because it provides timely identification of numbers.

U.S. officials emphasize that those logs do not contain the names of customers or content — just “metadata,” which includes phone numbers and the times and dates of calls. They note that they need a “reasonable, articulable suspicion” that a number they wish to check in the database is linked to a foreign terrorist group.

And they say that without having all the calls in one place and easily searchable with a keystroke, finding links to suspicious numbers would be tedious and time-consuming.

[snip]

U.S. officials argue that Moalin’s number probably would not have surfaced — at least not in a timely fashion — had it not been for the database.

[snip]

Had the intelligence community known where Mihdhar and a co-conspirator were and detained them, the “simple fact of their detention could have derailed the plan,” the 9/11 Commission said. To close that gap, the government created the phone call database. The goal, the reports say, is to “rapidly identify any terrorist threats emanating from within the United States.”

The NSA could put together a more limited dataset by going to every phone company and asking for all the numbers that have been in contact with a target number. But that takes time, and if analysts want to examine secondary contacts, they would have to go back to the phone company, officials said. [my emphasis]

And Nakashima quotes Ron Wyden challenging the timeliness of all this.

If time was of the essence, he said, a different court order or administrative subpoena would allow for an emergency request for the records. Wyden noted that both Moalin and the subway plot co-conspirator were arrested “months or years after they were first identified” by mining the phone logs.

But there’s a further reason, if Moalin is the exemplar of the practice, to challenge the NSA’s claims that the dragnet gives them timeliness they wouldn’t get otherwise.

Because at least according to the public record, there was a 2-month delay between the time they found the number used to query the 215 database and when they wiretapped Moalin. (Note, I do have significant suspicions that the court record does not accurately reflect what happened, but if it is inaccurate that’s the government’s own damn fault.)

In a hearing before the House Judiciary Committee last month, FBI’s National Security Division Executive Assistant Director Stephanie Douglas provided more details on how they found (or refound) Moalin.

I’d like to also represent one case to you, specific to the Business Record 215 authority. In 2003, the FBI initiated a case on an individual identified as Bisaaly Moalin. It was based on anonymous tips that he was somehow connected to terrorism.

In 2004 the case was closed without sufficient information to move forward on the investigation. However, three years later in October 2007, NSA provided a phone number to the FBI with an area code which came back to an area consistent with San Diego. NSA found this phone number was in contact with an al-Qaida East African affiliated person.

Once provided to the FBI, we initiated an investigation, submitted a national security letter for the subscriber of the phone number and determined that it was Mr. Moalin, the subject of the previously closed case. Subsequent investigation led to the identification of others, and to date Moalin and three others have been convicted of material support for terrorism. [my emphasis]

The FBI got this lead in October 2007.

But an affidavit for a search warrant at the time Moalin was arrested claims that the government first wiretapped Moalin in December 2007.

In December 2007, the FBI began intercepting MOALIN’s cell phone.

And a 2011 report summarizing a 2009 assessment (this is the source of Moalin’s Defense claims that the FBI had concluded he wasn’t trying to fund al-Shabaab per se) the Full Investigation into Moalin was initiated on December 18, 2007.

All that’s with hints from the government opposition to Moalin’s FISA challenge that at least some of this intelligence was collected under emergency authorization. (See, for example, the discussion on page 7, and footnote 22, which would probably be unnecessary unless the government did use emergency authorizations at some point in the process.)

In other words, even on the signature case using Section 215 — and with FBI’s use of a National Security Letter to pinpoint Moalin — it still took 2 months before they initiated the full investigation into him.

And yet they need to collect every Americans’ phone records so they can quickly get leads they take 2 months to open full investigations into.