Amash-Conyers Fails 205-217

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In one of the closest votes in a long time for civil liberties, the Amash-Conyers amendment just failed, but only barely, by a vote of 205-217.

The debate was lively, with Mike Rogers, Michele Bachmann, and Iraq verteran Tom Cotton spoke against the amendment; Amash closely managed time to include a broad mix of Democrats and Republicans.

The only nasty point of the debate came when Mike Rogers (R-MI) suggested Justin Amash (R-MI) was leading this charge for Facebook likes.

Update: Here’s the roll call.

Mike Rogers: IRS Scandal Is Real, NSA Scandal Is Not; AP Collection Is a Dragnet, Section 215 Collection Is Not

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One of the four members of Congress with greatest influence over this country’s “intelligence,” House Intelligence Chair Mike Rogers, claims that the IRS scandal is real and the risk of NSA dragnet is not.

Rogers said Amash’s amendment, which stops the NSA from collecting data under the Patriot Act, was an attempt to take advantage of anger over recent scandals including the Internal Revenue Service’s targeting of conservative groups applying for tax exempt status and the Justice Department’s probe of Associated Press journalists in connection to a leak about a thwarted terrorist plot that originated in Yemen.

“It’s certainly inflammatory and certainly misleading,” Rogers said Wednesday in an interview on Michigan radio station WTKG 1230. “I think, he tried to take advantage at any rate of people’s anger of the IRS scandal, which is real, and the AP —Associated Press dragnet by the Attorney General, Benghazi —all of those things are very real and there’s no oversight function “What they’re talking about doing is turning off a program that after 9/11 we realized we missed —we the intelligence community- missed a huge clue.” [my emphasis]

Note, too, that Rogers calls the (completely inappropriate) collection of the phone records for 20 AP phone lines a “dragnet,” but somehow doesn’t think the collection of the phone records for every single American is also a dragnet.

Again, this dude plays a significant role in this country’s “intelligence.”

From there, Rogers declined into outright misinformation.

Rogers added that NSA’s telephone data collection program has helped thwart over 50 terrorist plots.

The Section 215 collection — the only thing that would be affected by the Amash-Conyers amendment — has had a role in (per Keith Alexander’s latest claims) 13 plots.

Not 50.

13.

I can’t think of a better way for Mike Rogers to demonstrate that these programs have insufficient oversight — in which the Intelligence Committees play a crucial role — than to open his yap and make such ludicrous statements.

“Section 215 Is Silent”

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Justin Amash has a useful fact sheet on the Amash-Conyers amendment that would defund dragnet 215 collection. (If you haven’t yet called your Congressperson and told her to support the amendment, please do so!)

As a whole, the fact sheet clears up some misconceptions about the amendment, making it clear, for example, that the amendment only returns the meaning of Section 215 to the intent Congress had when it first passed.

Given that the fact sheet — dated today — appears to post-date yesterday’s TS/SCI briefing by Keith Alexander and James Clapper, I am particularly interested in these two sentences.

The administration has not provided a public explanation as to how the telephone records of all Americans are “relevant” to a national security investigation.  Similarly, Sec. 215 is silent as to how the government may use these records once it has obtained them.

The language seems to suggest the Administration has provided a classified explanation as to how phone records became “relevant to” a massive terrorism investigation.

More interestingly, the next sentence points to the Administration’s silence about how the government can use this dragnet collection.

That’s a concern I’ve long had. After all, only FISA Court minimization might, with very strict language, prevent the National Counterterrorism Center from simply copying the dragnet database and data mining it with abandon. And so I find it interesting that a document released after yesterday’s TS/SCI hearing mentions the possibility the government does something with it beyond what they’ve stated publicly.

If this were a Ron Wyden statement, I’d take it as a big hint. I’m not sure it is meant as such here, but it does heighten my concerns that this data is circulated far more widely than the government has admitted.

The Liars Are “Very Concerned” Program They Lied About Will Be Defunded

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Buried at the bottom of a broader story on opposition to the Amash-Conyers amendment, CNN offers a very solicitous account of the White House statement opposing it, making no note of how absurd the entire premise is.

The White House issued a statement Tuesday evening, saying that it opposes the amendment and urges the House to reject it. “In light of the recent unauthorized disclosures, the president has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens,” the statement said. “However, we oppose the current effort in the House to hastily dismantle one of our intelligence community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process.”

CNN does, however, provide James Clapper and Keith Alexander an opportunity to give their readout of the TS/SCI briefings they gave Congress.

In spite of reporting describing it as a lobbying session, these noted prevaricators claim their job wasn’t to persuade, it was just to answer questions.

“Our mission wasn’t to convince the House to do anything other than to provide information for them to make a decision,” Alexander told CNN.

Asked if they satisfied lawmakers and persuaded them not to change the program, Alexander would only say it was useful to “get the facts on the table.”

Sort of gives you the impression they failed to persuade, huh?

But if their mission was really to “provide information” and “get the facts on the table,” then what have all the unclassified briefings been about? Is this claim they were only now “providing information” yet another indication that they were, perhaps, misinforming before? Again?

That, to me, is a big part of this story: that two men who have lied repeatedly about these programs felt the need to conduct Top Secret briefings to provide information that hadn’t been provided in the past.

All of which makes me very unsympathetic to Clapper’s stated worry.

A day before the House is expected to vote on restrictions to the National Security Agency’s controversial phone surveillance program, the director of national intelligence told CNN Tuesday he would be “very concerned” if the measure were to pass.

This program is problematic for several reasons: it is overkill to achieve its stated purpose and it violates the intent of the Fourth Amendment.

But add to that the trust those overseeing the program chose to piss away by lying about this collection repeatedly in the past.

If Amash-Conyers does pass (and it’s still a long-shot unless each and every one of you manages to convince your Rep to support it), it will be in significant part because Clapper and Alexander abused the trust placed in them.

Update: HuffPo covers this straight, too, though at least it includes Demand Progress’ views.

After 7 Years of Refusing Any Public Debate, Executive Decries Congress for Not Being “Open”

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Here’s what the Administration thinks about the Amash-Conyers amendment (which it calls the Amash Amendment, perhaps not wanting to name a Democrat who has been involved in historic fights against out-of-control executive power in the past), which would defund dragnet Section 215 collection.

In light of the recent unauthorized disclosures, the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens. The Administration has taken various proactive steps to advance this debate including the President’s meeting with the Privacy and Civil Liberties Oversight Board, his public statements on the disclosed programs, the Office of the Director of National Intelligence’s release of its own public statements, ODNI General Counsel Bob Litt’s speech at Brookings, and ODNI’s decision to declassify and disclose publicly that the Administration filed an application with the Foreign Intelligence Surveillance Court. We look forward to continuing to discuss these critical issues with the American people and the Congress.

However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.

I find it interesting, first of all, that they sent this after Keith Alexander had his shot to lobby Congress in a Top Secret/SCI briefing. I guess they didn’t come away with a high degree of confidence Amash-Conyers was going to fail.

Then consider the head-spinning logic:

  • Unauthorized disclosures led to a Presidential claim he welcomes a “debate”
  • It lists several examples in which Executive Branch figures tell the public details about this surveillance (note the White House didn’t mention the NSA documents, which had to be withdrawn for inaccuracies); it calls these “proactive” in spite of the fact that they are all clear reactions to that unauthorized disclosure
  • It reiterates that it considers these one-way communications discuss[ions]
  • After saying one-way communication is discussion, the Administration says, “this blunt approach is not the product of an informed, open, or deliberative process”
  • Having made this ridiculous argument, the White House says it wants a “reasoned review”

Hell, if I were a self-respecting member of Congress, I’d support Amash-Conyers even if I weren’t already predisposed to, if only because this is such a crazy bat-shit claim to reason and openness.

The Executive Branch has had 7 years to have an open debate. It chose not to have that open debate. Now that one has been brought to it by Congress, it pretends Congress is the one at fault for the lack of informed or open process.

Working Post on Government Motion in Moalin Prosecution

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As I described in this post, the government’s opposition motion to Basaaly Saeed Moalin’s challenge to the FISA intercepts used to convict him is a doozy. I showed there how complex the collections used to convict him were (and presumably still are).

This is going to be a working post cataloging all the other interesting aspects of the government’s motion.

The page numbers are to hard page numbers; PDF page numbers are one number higher.

P1: Note the first redacted footnote modifying FISA. The footnote may discuss the other things also including under FISA, including the Section 215 application.

P1: For a variety of reasons — not least that the government only noticed the physical surveillance application under FISA after Moalin challenged the FISA intercepts — I think the “physical” searches have some relation to the electronic surveillance as well. Note the footnoted sentence is followed by an entirely redacted passage (on P2) that itself is footnoted.

P3: The last sentence of the first paragraph reads, “After [Aden] Ayrow [the Somali warlord Moalin may have first been targeted off of] was killed, the defendants continued to collect funds and transmit them to Somalia to support violence against the TFG and its supporters.” Note, most of the money Moalin transfered did not go to al-Shabaab (and given footnote 5, I suspect the government knows of even more money that went to entirely acceptable charitable causes).

Read more →

Will Keith Alexander FINALLY Tell the Full Truth about the Section 215 Dragnet in Today’s Secret Emergency Hearing?

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Since Edward Snowden made it clear the government has been collecting every American’s phone records in the name of terrorism (and Iran), the National Security establishment has made a great show of transparency.

Don’t worry it’s “just” metadata, they said. Only 300 queries, well, we really mean only 300 identifiers to query on, which works out to be more than 300 queries. Only those who talk to terrorists. Or talk to those who talk to terrorists. Or talk to those who talk to those who talk to those who talk to terrorists, they ultimately revealed.

But last Thursday, the government admitted, sort of, that they’re not being as transparent as they claim. In a letter submitted in an effort to stall for time in ACLU’s suit to stop the 215 collection, the government offered a 400+ word description of the program. But the description started by claiming the program is, “in may respects, still classified.”

This case concerns a highly sensitive and, in many respects, still classified intelligence-collection program that is designed to assist the U.S. Government in discovering whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States. Under this program, the Federal Bureau of Investigation (FBI) obtains authorization from the Foreign Intelligence Surveillance Court (“FISA Court”) to collect telephony metadata from certain telecommunications service providers. The National Security Agency (NSA), in turn, archives this information; queries the data, when strict standards are met, to detect communications between foreign terrorist organizations and their potential operatives located in the United States; and provides leads to the FBI or others in the Intelligence Community for counterterrorism purposes. [my emphasis]

So what do the “many respects” of this program that remain classified do? And do those “many respects” describe why the government needs to create an associational database including every American to help in just 13 plots over 7 years?

Which is why I find it interesting that, as soon as it became clear the Amash-Conyers amendment to the Defense Appropriations — which would defund the dragnet collection — would get a vote, NSA Director Keith Alexander decided he needed to talk to Congress in secret.

NSA head General Keith Alexander scheduled a last-minute, members-only briefing in response to the amendment, according to an invitation distributed to members of Congress this morning and forwarded to HuffPost. “In advance of anticipated action on amendments to the DoD Appropriations bill, Ranking Member C.A. Dutch Ruppersberger of the House Intelligence Committee invites your Member to attend a question and answer session with General Keith B. Alexander of the National Security Agency,” reads the invitation.

“The briefing will be held at the Top Secret/SCI level and will be strictly Members-Only,” the invitation read.

So it seems that Alexander has more to say about this program he has feigned transparency on for the last month and a half.

That said, Alexander has a serial history of misleading statements when he doesn’t have a public fact-checker. So while he may tell Congressmen and -women more details about how they’re really using this dragnet database and why making 13 investigations easier merits such overkill, it’s unlikely he’ll tell the compete truth. I’m not optimistic.

But he may finally reveal why the government chose this overkill method of surveillance.

While Alexander is conducting this top secret briefing, you can do your own lobbying[: call you member of Congress and tell them to support Amash-Conyers.

Did the Government Change When — and How — It Minimized US Person Collections Since 2008?

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I’ve been digging through the weeds of the government’s response to Basaaly Saeed Moalin’s challenge of the FISA materials used in his trial. As a reminder, this is one of just two examples of a case where the government has admitted to using the Section 215 database to capture a terrorist (they now say they’ve used the database in 13 cases total, presumably since 2006).

In a section starting on page 50, the government argues the collection leading to Moalin’s indictment (and since then, his conviction) was “lawfully conducted.”

[T]he FISA-obtained or -derived information that wil be offered into evidence in this case was acquired, retained, and disseminated by the FBI in accordance with FISA’s minimization requirements, and the implementing standard minimization procedures (“SMPs”) promulgated by the Attorney General and approved by the FISC.

As this document mapping out the structure of the argument, the first and only section of their proof addresses minimization. That may seem kind of weird, but remember that the Intelligence Community sometimes calls this collection “collection carried out pursuant to the Section 702 minimization procedures.” (Though keep in mind that the collection in question took place under the Protect America Act starting in 2007.)

What I’m particularly interested in, however, is that following an initial redacted section and footnote addressing minimization, the government’s motion addresses two sets of standard minimization procedures (see the first sentence of document page 51). At first, I thought the invocation of “both” pertained to one procedure for electronic and another procedure for physical surveillance (the government used both in its case against Moalin). But the full reference refers to the “current”  and the “old” SMPs.

Under FISA and both sets of SMPs, minimization “may occur at any of several stages, including recording, logging, indexing, or dissemination.” lARA, 2009 WL 5169536, at *6 (citing Kevork, 634 F. Supp. at 1017); Senate Report at 40; current SMPs,, Section I.A., pp. 1-2. At the acquisition stage, FISA does not “prohibit the use of automatic tape recording equipment.” Rahman, 861 F. Supp. at 252; Kevork, 634 F. Supp. at 1017. Indeed, the FISC has noted that FISA surveillance devices are normally left on continuously and that consequently minimization occurs (under the old SMPs) during the logging and indexing of the pertinent communications.88 See In re Sealed Case, 310 F.3d at 740.

Remember, the wiretaps used in this case date to December 2007 to April 2008. The motion was written in February 2012. This seems to suggest the “old SMPs” were in place in 2007-08, but they have been replaced since then. And the distinction between the two — and an explanation for why they would both be relevant to the question of legality — must appear in a redacted section, perhaps the one that immediately precedes this passage.

Note, these appear to both be different from the minimization procedures leaked by Edward Snowden, which have a date stamp from July 29, 2009. Those address collections under Section 702 of FISA, whereas the reference to SMPs in In Re Sealed Case cited above describes “Standard Minimization Procedures for U.S. Person Agent of a Foreign Power,” as referred to in this passage of that ruling.

The most critical step in retention is the analysis in which an informed judgment is made as to whether or not the communications or other data seized is foreign intelligence information. To guide FBI personnel in this determination the Standard Minimization Procedures for U.S. Person Agent of a Foreign Power in Section 3(a)(4) Acquisition/Interception/Monitoring and Logging provide that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime . . . may not be logged or summarized.” (emphasis added). Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

This seems to suggest the minimization procedures from 2002 (the ones invoked in this ruling) remained roughly the same until the “old SMPs” referred to in this passage.

But it also appears the passage doesn’t treat the “current” SMPs as the Snowden version either. That’s because there is no section I.A. in those — and certainly not one discussing logging and indexing.

I raise all this because the new ones seem to allow minimization (or not) at two more different stages: at the collection phase (which, given the description of the kinds of collection they conduct, might be computerized) or at the dissemination stage. Given the language in the minimization procedures we’ve seen (and the discussion that follows this passage, which talks about the looser minimization in terrorism cases), that seems to allow decisions long after the initial “collection.” (Remember, in this case, the government decided in 2009 not to prosecute but then in 2011, following the prosecution of the hawala involved, did decide to do so.)

In the Section 702 context, there appears to be little logging and indexing (which is why the government can claim it can’t say how many Americans get sucked up as “incidental” collection). I wonder if part of this change reflects a de-emphasis of logging and indexing for specific warrants as well?

Did the FISA Court Approve the “Relevant To” Dragnet Collection before Congress Passed the PATRIOT Reauthorization?

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I want to point to a passage of the 2008 DOJ IG Report on use of Section 215. I think it adds new details about how the government came to use Section 215 to spy on all of us.

On page 20, the report describes what it calls “combination Section 215 Applications and Orders in 2006.” It reveals that for a period, when FBI got pen register/trap and trace orders, it would also use Section 215 to get subscriber information.

A combination application is a term used by OIPR to refer to a Section 215 request that was added to or combined with a FISA application for a pen register/trap and trace. The use of the combination request evolved from OIPR’s determination that FISA pen register/trap and trace orders did not require providers to turn over subscriber information associated with telephone numbers obtained through those orders. As a result, Section 215 requests were added to pen register/trap and trace orders to seek subscriber information.

That’s all for regular FBI use of the program.

But then it includes one of those heavily redacted passages that, we now know, refer to the bulk metadata collection program(s).

OIPR also used combination orders in 2005 and 2006 to obtain [two lines redacted]23

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [one line redacted]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [half line redacted] from the FISA Court. Therefore, OIPR decided not to request [several words redacted] pursuant to Section 215 until it re-briefed the issue for the FISA Court. 24

23 [One line footnote redacted]

24 OIPR first briefed the issue to the FISA Court in February 2006, prior to the Reauthorization Act. [two lines redacted]

This may actually pertain solely to the phone metadata collection (as far as we know, they never used 215 for Internet metadata because (James Cole implied yesterday) Internet companies don’t keep records of their customers’ metadata.

And the reference to 2005-2006 may simply refer to the period, after the initial NYT reports, when phone companies asked to be required to turn over their customers’ metadata.

If so, then this is nothing new … except for one detail. It suggests the government used PR/TT for the initial period of this collection, until such time as Congress passed the “relevant to” language in Section 215.

But that would also suggest that DOJ had developed and briefed this new use of Section 215 orders even before Congress approved the bill.

Only, it doesn’t appear to have told those pushing the bill through Congress.

Perhaps that’s why Jim Sensenbrenner — who was one of the bill managers — is so pissed.

NSA: The “Half-Bacon Agency”

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My mom’s in town, so I’ll be doing light posting over the next several days.

But I did want to emphasize the rather startling news that came out of yesterday’s House Judiciary Committee on the NSA spying programs.

NSA Director John Inglis revealed that the FISA Court permits the government to do three jumps from an initial number tied to a phone number reasonably believed to be tied to terrorism (or relevant to Iran, though that search criteria didn’t get mentioned at all in the parts of the hearing I watched).

Three degrees of separation!

Remember, some years ago, every single person in the US could be connected via six degrees — the old Kevin Bacon game. There’s some evidence that that number has become smaller — perhaps as small as 3 (I’ve seen more scientific numbers that say it is 4.5 or thereabouts).

In any case, if the US is using the excuse of terror to get three jumps deep into US person associations, then this program is even more intrusive then they’ve let on.

One thing I didn’t see disclosed yesterday? To what extent the government claims these 3- (or 2, which — IIRC — Deputy Attorney General James Cole said was their most productive layer) degrees of separation from someone claimed in an articulation not closely reviewed has ties to terrorism. Is talking to someone who talks to someone who talks to someone who is a terrorist used, in secret, to claim people are agents of a foreign power?

In any case, this means the NSA has been spending its time playing 3 degrees of separation from Kevin Bacon in secret.