The Torture That Underlies FISA Court’s “Special Needs” Decisions

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At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

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

Five Additional Questions for Jim Comey

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Colleen Rowley has a great list of questions Jim Comey should be asked today in his confirmation hearing (I’ll be live-tweeting it, so follow the twitter feed over there. >>>>>>

Here are five questions I would add:

  1. The May 10, 2005 torture authorization you signed off (as well as the Combined of the same date one you objected to) on was retrospective. What were the circumstances of the treatment of this detainee? Was that detainee water-boarded, in spite of CIA claims only Abu Zubaydah, Ibn Rahim al-Nashiri, and Khalid Sheikh Mohammed were?
  2. Do you believe the High Value Interrogation Group (HIG) should be authorized to use “separation,” including modified sleep deprivation, to coerce confessions?
  3. Do you believe it legal or advisable to delay presentment for detainees interrogated by HIG so as to set up up to two weeks of unsupervised interrogation?
  4. FBI has used the Section 215 authorization — the same law used to collect every American’s phone data — to collect lists of common products that on very rare occasions have been used as precursors to explosives. They could and may well have used the same authority with pressure cookers. Is collecting such a broad sweep of innocent activity in pursuit of terrorists the best way to identify them? What do you believe the appropriate use of Section 215 authority is?
  5. Through the entire financial crisis, it appears the FBI did not use all the investigative tools available, including (with two or three notable exceptions) wiretaps and phone and Internet tracking, when investigating large financial institutions. This appears to be true even when, as with your former employer HSBC, the institution had clear ties to terrorists and Transnational Criminal Organizations. What tools do you believe appropriate to investigate large financial institutions and do you plan to change the approach to investigating financial crime?

Bradley Manning Defense: Good Data Miners Are Data Hogs

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I happened to need to consult the PressFreedom transcript of today’s Bradley Manning trial. And came across this exchange, which goes to the heart of the debate on NSA’s dragnet of Americans.

In it, Manning’s lawyer, David Coombs, questioned Chief Warrant Officeer Joshua Ehresman, the ranking officer in the SCIF Manning worked in. Ehresman describes how analysts in Manning’s role were encouraged to consult whatever sources they could get their hands on.

Q And you had earlier said the term data mining, what is data mining?

A That’s pulling everything you can from every bit of intelligence assets you’ve got to help build your products.

Q Would you expect (INAUDIBLE) list of data mining?

A Yes, sir.

Q Why is that?

A Because you can’t go off one source of intelligence to predict something to happen. You have to have other stuff that indicate that it’s going to happen. You can’t just guess.

Q Where do analysts obtain their information that they’re data mining?

A Everywhere, sir. We got them on the SIPR, we got them from the T-Drive. We got them from wherever we could, open source, anything.

Q And correct me if I’m wrong, when I think of the term data mining, what you just described, is basically an analyst looking at everything and anything that they can, at any location just to kind of figure out would this perhaps be relevant to what I’m doing, is that correct, or would you provide a different definition for it?

A Yes, sir.

Q Yes, sir, that’s —

A That’s correct. You’re trying to find out yes or no this is going to happen, and, yes, this is how it’s happened and this is why it’s happening. So you have to confirm or deny your assessment.

Q Now, with regards to I guess when you’re doing this was the any guidance put out that if your you’re data mining you can do everything but go to this particular area on SIPRnet?

A No, sir.

Q So were there any restrictions on what you would data mine on SIPRnet?

A No, sir.

Q Was it common for a soldiers or analysts to data mine?

A Yes, sir.

Q Did analysts also use open source information?

A Yes, sir.

Q And what is open source information?

A That’s regular Internet, sir.

Q How would an analyst use an open source?

A We would get on and check out the web pages or you can check out local newspaper or it’s anything that doesn’t come through our secret or higher confidential webs.

Q And, again, in kind of a general description, how would open source information help your work products?

A Sometimes some of the media had information that we didn’t find out through our patrols or something. We could get patrol report and they would have outside information or a different point of view from what happens. So we would use that in our assessment, sir.

Q And were analysts encouraged to use open source information for their work products?

A Yes, sir.

Q Was there any sort of restriction placed out by the S2 section of you can go to every place besides these sites on open source?

A There was no restriction, sir.

Ehresman would go on to testify that Manning was, “our best analyst by far when it came to developing products.” Manning was, Ehresman testified, “our go-to guy for a lot of our shops, sir.”

This has little to do, directly, with the question of whether Manning will be found guilty or innocent of the charges against him.

But it does demonstrate how impossible the goal of protecting both data mining analysis and privacy is. If you want the (then) Specialist Mannings of the world to do their job well, you need to give them as much information, in relatively unfettered form, as you can.

There’s little way to achieve this goal and, at the same time, protect the data you’re piping out, aside from the honor system. And the honor system relies, in turn, on you — the United States — matching your promises and claims.

Federal Court Strikes Down Obama DOJ’s State Secrets Defense

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In what can only be described as a significant ruling, Judge Jeffrey White in the Northern California District (CAND) has rejected the federal government’s, via the Obama and Holder Department of Justice, assertion of state secrets privilege in the case of Jewel v. National Security Agency and the related consolidated case of Shubert v. Obama.

The full decision of the court is here, and in the critical active language from the court’s own summary states:

Having thoroughly considered the parties’ papers, Defendants’ public and classified declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs’ constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for summary judgment on the remaining, non-statutory claims.

The Court shall require that the parties submit further briefing on the course of this litigation going forward.

Now, before too much celebration is made, there are some sobering aspects of this decision as well. As can be told from the quote above, several counts in both complaints have been dismissed based on sovereign immunity, and the court has questions about the continued validity of the remaining counts and has requested further briefing in that regard.

With the ultimate status of the litigation left for another day, the big news today is the negation of the dreaded state secrets assertion. To say this is a rare occurrence is to be too kind. In fact, the main instance where the privilege was overcome was the al-Haramain litigation, also in CAND, where Judge Vaughn Walker found non-classified evidence sufficient to proceed in the face of the state secrets assertion, and even that case was later reversed and dismissed by the 9th Circuit.

The court in Jewel mapped out the consideration process for the privilege challenge:

The analysis of whether the state secrets privilege applies involves three distinct steps. First, the Court must ascertain whether the procedural requirements for invoking the privilege have been satisfied. Second, the Court must make an independent determination whether the information is privileged. In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. 19 at 11. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.” El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).

Noting that the assertion of state secrets must not cause “a complete surrender of judicial control over access to the courts”, Judge White wrote:

Here, having reviewed the materials submitted for review and having considered the claims alleged and the record as a whole, the Court finds that Defendants have timely invoked the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,

because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.

507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal. 2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret. See Totten, 92 U.S. at 107.

White went on to note that there were significant items of evidence in the Jewel case tending to confirm or negate the factual allegations in Plaintiffs’ complaints that would be subject to state secrets exclusion. However, White held that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C. 26 § 1806(f) preempted application of the state secrets privilege in the litigation at bar.

Citing one of the interlocutory appellate decisions in al-Haramain and the underlying logic of then trial judge Vaughn Walker), Judge White said:

In its opinion on remand in the Al-Haramain matter, this district court found that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes ….” In re National Security Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records Litig.”), 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008). The undersigned agrees and finds that the in camera review procedure in FISA applies and preempts the determination of evidentiary preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets privilege in cases in which electronic surveillance yields potentially sensitive evidence by providing secure procedures under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.

Section 1806 of the FISA enabling statutes in Title 50 of the United States Code provides, inter alia;

… whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State . . . to discovery or obtain applications or orders or other materials relating to electronic surveillance . . . the United States district court … shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

This finding by Judge White reaffirmed at least some control by federal trial courts of sweeping assertions of state secrets privilege by the Executive Branch. That is, better than nothing, for sure. But it is rather small comfort in light of the finding of qualified immunity extended to the government on the Jewel and Shubert plaintiffs’ statutory claims under FISA.

In discussing the intersection of the FISA claims with related claims by plaintiffs under the Stored Communication Act and Wiretap Act, the court did leave several more general counts of the complaints active. However, there is no way to look at the entirety of Jeff White’s opinion and come away believing the plaintiffs have any clear path to victory in the long run. The Jewel and Shubert cases live on to fight another day, for now, but the handwriting is on the wall for either the 9th Circuit or Supreme Court to deal the death blow down the road.

An EPIC Effort to Combat the Dragnet

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The Electronic Privacy Information Center has filed a writ of mandamus to SCOTUS to overturn the Section 215 order turning over all of Verizon’s call records to the NSA.

Let me be clear: this is a moon shot. I’m doubtful it’ll work. A really helpful post at SCOTUSblog on the effort emphasizes how unusual this is.

EPIC’s move is the boldest of a number of legal challenges to NSA that have been filed around the country by privacy defenders in the wake of Snowden’s public disclosure of some of the details of NSA surveillance.  EPIC filed under a Supreme Court rule that permits “extraordinary” filings directly in the Supreme Court, without first making a trip through a lower court, when “exceptional circumstances warrant the exercise of the Court’s discretionary powers” and an adequate remedy cannot be obtained “from any other court.”  The history of such Rule 20 requests shows that few are granted.  The Court’s own rules say that the power to grant such pleas is “sparingly exercised.”

All that said, IMO the filing is very well crafted, and worth reading with attention.

Name check the key Justices

I first got sucked in by the way the introduction invokes two recent cases on these issues.

The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring). As Justice Breyer has recently noted, “the Government has the capacity to conduct electronic surveillance of the kind at issue.” Clapper v. Amnesty Int’l, USA, 133 S.Ct. 1138, 1158- 59 (2013) (citing, inter alia, Priest & Arkin, A Hidden World, Growing Beyond Control, Wash. Post, July 19, 2010, at A1 (reporting that the NSA collects 1.7 billion e-mails, telephone calls and other types of communications daily)). And because the NSA sweeps up judicial and Congressional communications, it inappropriately arrogates exceptional power to the Executive Branch.

Sotomayor is the one Justice who “gets” the implications of this dragnet; her opinion in Jones summarized where an ideal SCOTUS would be on these issues. If this is going to work Sotomayor is going to need to hold the hands of the other Justices and walk them through this risk. And Breyer is a key swing, a vote likely to support law and order without a good argument to the contrary.

And notice the way EPIC slipped in the separation of powers argument right there?

The motion also name checks two more crucial Justices, Republicans who have supported civil liberties issues on key cases in the past. Most importantly, it invokes Scalia’s recent warning against a panopticon in Maryland v. King (the DNA case).

Even admirable ends do not justify the creation of a panopticon. See Maryland v. King, 569 U.S. __, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless lawenforcement searches.”).

Read more →

Why Has the Intelligence Community Missed So Many Digital Bales of Hay?

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In a piece on the intelligence community’s increasing reliance on SIGINT, LAT reports that the amount of the President’s daily brief that comes from SIGINT has increased from 60% since 2000.

Determined to identify and track Al Qaeda terrorists and to prevent another attack after Sept. 11, 2001, the NSA set about vastly enlarging its ability to capture, store and exploit the ocean of texts, emails, videos and other electronic communications.

“They took on a new mission that required sifting vast amounts of data to find a few important signals,” said Stewart Baker, who was the NSA’s general counsel from 1992 to 1994 and held top Homeland Security Department jobs in the George W. Bush administration.

Today the NSA secretly siphons an almost unimaginable number of foreign government, corporate and private communications from the World Wide Web, according to the trove of classified material disclosed by Edward Snowden, the fugitive former NSA contractor. One document leaked last week revealed that NSA computers take in 500 million “communications connections” per month in Germany alone.

[snip]

About 60% of the president’s daily brief, the highly classified intelligence summary delivered to the White House each morning, was based as of 2000 on “signals intelligence,” or intercepted communications, according to a declassified NSA document from December of that year. The NSA portion has increased since then, former officials say.

“Over the last 10 years, because of the Internet gold mine, signals intelligence has become the primary vehicle for U.S. intelligence collection,” said James Lewis, director of the technology and public policy program at the nonpartisan Center for Strategic and International Studies in Washington.

WaPo’s original story on PRISM (which, remember, is just a computer interface making it easier for analysts to access data from just 9 companies) reported that 1 in 7 pieces of intelligence in the PDB derived from PRISM, or a total of 1,477 pieces of intelligence last year (10,339 pieces of intelligence in all the PDBs last year, then?).

An internal presentation of 41 briefing slides on PRISM, dated April 2013 and intended for senior analysts in the NSA’s Signals Intelligence Directorate, described the new tool as the most prolific contributor to the President’s Daily Brief, which cited PRISM data in 1,477 items last year. According to the slides and other supporting materials obtained by The Post, “NSA reporting increasingly relies on PRISM” as its leading source of raw material, accounting for nearly 1 in 7 intelligence reports.

Remember, this is all non-public information.

Back in 2011, however, the intelligence committee failed to understand the Arab Spring that was breaking out in public fora for all the world to see (I once quipped that those who followed Democracy Now’s Sharif Kouddous on Twitter had a better understanding of what was going on than the CIA).

And as recently as this year’s confirmation hearing for John Brennan, he admitted that the CIA needed to better monitor public social networks.

BRENNAN: Well clearly, counterterrorism is going to be a priority area for the intelligence community and for CIA for many years to come. Just like weapons proliferation is as well. Those are enduring challenges. And since 9/11 the CIA has dedicated a lot of effort, and very successfully, they’ve done a tremendous job to mitigate that terrorist threat.

At the same time, though, they do have this responsibility on global coverage. And so, what I need to take a look at is whether or not there has been too much of an emphasis of the CT front. As good as it is, we have to make sure we’re not going to be surprised on the strategic front and some of these other areas, to make sure we’re dedicating the collection capabilities, the operations officers, the all-source analysts, social media, as you said, the — the so-called Arab Spring that swept through the Middle East. It didn’t lend itself to traditional types of — of intelligence collection.

There were things that were happening — happening in a — on a populist — in a populist way, that, you know, having somebody, you know, well positioned somewhere who can provide us information is not going to give us that insight, social media, other types of things. So I want to see if we can expand beyond the sodestra (ph) collection capabilities that have served us very well, and see what else we need to do in order to take into account the changing nature of the global environment right now, the changing nature of the communication systems that exist worldwide.

Though Brennan suggested that a focus on leaders rather than common people led to CIA’s blindness in this case (I’d add, a reliance on brokers like Egypt’s Omar Suleiman or Saudi Arabia’s Mohammed bin Nayef, who have an interest in depicting unrest in their countries as threats to friendly governments, distorts reality).

But whether the NSA or the CIA should have seen the revolts bubbling up in plain sight, both missed it because of all the secret stuff they remained focused on.

I’m not actually advocating for the CIA to start trolling Twitter more aggressively. Still, if the focus on secret stuff has led to blindness, we need to rethink our obsession with secret digital haystacks.

FISC Opinions as Legal Cover

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WSJ has a story on how the FISA Court came to render the phrase “related to” — which has been used for 7 years to collect the phone records of almost all Americans — entirely meaningless.

The history of the word “relevant” is key to understanding that passage. The Supreme Court in 1991 said things are “relevant” if there is a “reasonable possibility” that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn’t meet the relevance standard because significant portions—innocent people’s information—wouldn’t be pertinent.

But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court’s rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means “relevant” can have a broader meaning for those investigations, say people familiar with the rulings.

The story specifically says FISC issued the decision authorizing the use of Section 215 to collect phone records in May 2006, in the wake of the exposure of Dick Cheney’s illegal dragnet (and after Congress had included the “relevant to” language in the PATRIOT Act reauthorization).

But in May 2006, the secret court agreed that, even with the addition of the word “relevant,” bulk phone records could also be collected under the law.

The legal interpretations required to make this change were “aggressive,” says Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations. Still, considering that the program previously had less congressional or court oversight, many lawmakers saw this as a step forward, he says.

“It wasn’t seen that we’re pushing the boundaries of surveillance law here,” Mr. Edgar says. “It was the very opposite. You’re starting from a huge amount of unilateral surveillance and putting it on a much sounder legal basis.”

Indeed, the way Edgar justifies this crazy distortion of the term “relevant” is by pointing to Cheney’s illegal program, as if that made it right.

But WSJ also describes this May 2006 decision as one in a series of decisions starting in “mid-2000s.”

In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The timing is significant. Remember, FBI hadn’t used Section 215 in the post-9/11 era until the period Jack Goldsmith and Jim Comey started challenging the illegal program’s legality; FBI got their first Section 215 order approved — MIRACLES! — on May 21, 2004. FBI at least temporarily sidestepped DOJ’s Office of Intelligence Policy and Review to employ this standard.

On March 23, 2004 at noon, less than two weeks after the dramatic hospital confrontation and threats to quit reportedly got the Administration to agree to stop data mining Americans, FBI Director Robert Mueller had a meeting with Dick Cheney, at the Vice President’s request, in the Vice President’s office. In his notes, Mueller doesn’t describe what the VIce President wanted, nor am I aware that it has even been reported in the press.

The next day, the Chief Division Counsel of some Division of the FBI wrote a memo to the FBI General Counsel noting that FBI was using a “new standard” with Section 215 of the PATRIOT Act and indicating that a “recent decision” had been made to bypass the review of the Office of Intelligence Policy and Review on Section 215 applications.

In part, the apparent decision to bypass OIPR, which had rejected the premise of the previous Section 215 orders FBI had submitted in the past, reflected no more than a concerted effort on FBI’s part to make sure it could start using all the PATRIOT authorities it had been granted in 2001 in anticipation of renewal discussions that would take place the following year. Yet the timing of this change is particularly curious, given that we now know Section 215 has been used to collect data that could be used for data mining Americans, precisely the problem that had caused the hospital confrontation 12 days earlier.

At the very least, however, it shows that sometime around the same time as Jim Comey and others at DOJ tried to stop the data mining of Americans under NSA’s illegal program, FBI claimed to have eliminated one review step for Section 215 orders and changed the standard used for them. That reference notwithstanding, DOJ Inspector General at least reported that OIPR continued to have a role. (Note, the office that got cut out of the process, OIPR, is where one of the key whistleblowers on the illegal program, Thomas Tamm worked, though I have asked him if he knew whether they used Section 215 to accomplish the same program and he didn’t know anything about it.)

On May 21, 2004, just as the the confrontation was settling down, FBI got its first Section 215 order approved. MIRACLES! the memo subject line read. “We got our first business record order signed today. It only took two and a half years.”

And consider the other odd thing about all this. There is a part of FISA specifically designed to return phone records, the Pen Register/Trap & Trace procedure (the one used starting in 2004 for Internet metadata). So why didn’t they use that?

In any case, this increasingly appears to be the end result of an effort on the part of FISC to remain relevant by distorting law in secret, in the hopes that an unconstitutional expansion of the law in secret was better than actually stopping an illegal program conducted by bypassing the court altogether.

The reason the law is so twisted is because no one wanted to — or believed they had the ability to –rein in gross violations of law conducted by Dick Cheney.

In These Times We Can’t Blindly Trust Government to Respect Freedom of Association

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One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.

Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.

In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.

When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:

According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.

Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.

While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.

Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.

And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.

Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.

Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:

  • NSA has not said whether queries of the metadata dragnet database are electronically  recorded; both SWIFT and a similar phone metadata program queries have been either sometimes or always oral, making them impossible to audit
  • Read more →

Edward Snowden’s Extradition Request

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Screen shot 2013-07-06 at 9.31.58 AMAs I noted last night, Venezuelan President Nicolás Maduro offered Edward Snowden asylum last night. (The Spanish was “hemos decidido” and “he decidido ofrecerle asilio” which included none of the sense of hypothetical that Nicaragua’s President Daniel Ortega used.)

The government has released the extradition request they’ve sent to the Venezuelan government.

Perhaps the most interesting detail is the date: July 3. Way back when Maduro was (unless I’ve lost track of his chronology), still in Russia or Belarus, and when Bolivian President Evo Morales was making a big stink about being “kidnapped” in Vienna.

Since that time, Maduro finished his visit in Belarus. Flew (presumably with a refueling stop somewhere and possibly a stop at home) to Cochabamba, Bolivia, where at least 6 South American leaders either were personally or had sent a representative (in addition to Morales and Maduro, the Presidents of Ecuador, Suriname, Argentina, and Uruguay were present, Brazils Dilma Rousseff had sent a representative, as had, according to some reports, Peru and Chile).

Then Maduro returned home in time for Venezuela’s Independence Day celebration, where he issued his statement offering asylum.

It appears that after the US issued the extradition request to Venezuela, they issued an arrest warrant to Ireland.

Now, perhaps the US has real intelligence saying that Snowden remains in Russia. But these are the people who were sure he was on Morales’ plane just a few days ago. And they don’t really seem all too sure about where Snowden is.

Update: This is one of the few stories I’ve seen that affirmatively said Snowden was still in Russia after Maduro’s departure, based on a single Russian security source.

Update: And this has more Russian sources stating he remains stuck in Russia.

Europe again stuck saying, “They told us they were sure”

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The NATO members who refused overflight privileges for Bolivian President Evo Morales are, in the process of trying to justify what they did, revealing more details of what led them to risk such a diplomatic affront. Among other explanations, the Spanish foreign minister explained that “they” told the Spanish “they were sure” Snowden was on board Morales’ plane.

“They told us they were sure… that he was on board,” Mr Garcia-Margallo told Spanish television, without indicating who “they” are.

“And so the reaction of all the European countries that took measures – whether right or wrong – was because of the information that had been passed on. I couldn’t check if it was true or not at that moment because it was necessary to act straight away.”

In point of fact, it’s not yet clear Snowden wasn’t on the plane. While Austrian authorities checked the passports of the known passengers on the plane, they apparently did not conduct a thorough search. And 3 Spaniards who showed up to conduct a search were denied entry (though Morales did stop in the Canary Islands, which would have provided another opportunity to conduct a search on Spanish territory, but by that point Morales was already making a literal international incident about his treatment).

Then yesterday the heads of state from 5 other South American countries gathered in Cochabamba, Bolivia (why not La Paz?) to bitch about the actions of those NATO countries that had insulted Morales. If Snowden was on Morales’ plane, he may well be in any of 6 other countries by now (Brazil’s Dilma Rousseff sent an advisor — and note several attendees would have had to fly over Brazilian airspace to return home).

Or Snowden could be in Austria, which was one of the countries that had said Snowden would need to be in their country before it could consider an asylum request (there were pictures of Morales and Fischer from Morales’ layover that made them look quite jolly).

Or Snowden could still be in Sheremetyevo, though no one has ever seen him there. Russia’s Deputy Foreign Minister Sergei Ryabkov signaled impatience with Snowden today, even though in the past Putin said he would not extradite the leaker. But who knows whether the Russians, who are enjoying this game, are telling the truth?

So Snowden could foreseeably be in Argentina, Austria, Bolivia, Brazil, Ecuador, Russia, Suriname, Uruguay, or Venezuela. And there’s no reason to believe we’d know one way or another.

Meanwhile Ecuador chose yesterday, in the wake of the Morales slight, to complain about a bug placed in its Embassy in London. A bug they claim to have found last month.

Foreign Minister Ricardo Patino told a news conference in Quito the bug was found last month when Ecuadorean technicians reviewed the embassy’s wiring.

Now, Ecuador reportedly found the bug in connection with Patino’s trip to London June 16. Which ought to raise questions about why they’ve chosen this moment to make a stink about it. Did they leave it in place to sow disinformation? In any case, the bug has given Ecuador reason to raise tensions with England, which has avoided the badgering the other NATO European countries have.

So who knows where Snowden is? But in the meantime, US intelligence (presumably the “they” who were “sure” Snowden was on Morales’ plane) has been exposed in another potential false certainty, and the South American nations skeptical of the Washington consensus have reasons to make fun of Europe for playing Washington’s poodle.

This entire stink is supposed to be about America’s omnipotent SIGINT dragnet (the power of which is presumably one of the reasons the NATO members are being so compliant with US demands). But somehow that SIGINT hasn’t pinpointed Snowden yet, and may have gotten badly embarrassed by listening into one of its own bugs.

Update: Nicolas Maduro has granted Snowden asylum, as has Nicaragua’s Daniel Ortega. Which leaves the logistics of getting Snowden to Venezuela if he is not already there.