The Changes Wyden/Udall Wanted to Section 215

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As I’ve been reporting, Ron Wyden and Mark Udall unsuccessfully tried to get the Senate to require the government to reveal how it interprets the PATRIOT Act. And since both have made it clear that Section 215 is one of the concerns, I wanted to look at the amendment they’ve proposed to fix Section 215. They proposed to replace this language:

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to— 

(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
With this:

(2) shall include–

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)(I) pertain to a foreign power or an agent of a foreign power;

(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

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

This actually has become a perennial suggested change, one the Administration has been rejecting, in general, since 2009.

What the existing law does, through magic of grammatical obfuscation, is eliminate the requirement that Section 215 have anything to do with an actual investigation of suspected terrorists (or alleged spies like Julian Assange). It’s just easier (“presumptively relevant”) to use Section 215 with such people.

But all of that means the government can use Section 215 to get tangible things to protect against international terrorism. The government might only have to argue that it needs a database of everyone’s cell phone geolocation so when they look for terrorists or WikiLeaks supporters, they’ve got that all on file already.

Wyden and Udall are trying to swap out that language to require that the information both be relevant to an investigation and be tied to some suspected terrorist (or Julian Assange). The magic of “and.”

But of course that would make Section 215 useless for bulk collection, which is why this Amendment, after some fear-mongering, always gets defeated.

Because the United States of America, under the guise of fighting terrorists, has to consistently lie to its citizens so it can create massive databases on completely innocent people available for any searches the government might want to do, whether those searches have to do with terrorism or not.

And they call all this lying? The PATRIOT Act.

The Government’s PATRIOTic Databases on Innocent Americans

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As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

[snip]

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

Wyden and Udall Want Obama to Admit to Secret Collection Program

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Ron Wyden and Mark Udall have an amendment to the PATRIOT Act that makes it clear the Obama Administration briefed the Intelligence Committees in February on an intelligence collection program, conducted under PATRIOT authority, that interprets the language of the law so broadly as to mean something it really doesn’t say. The amendment reads, in part,

(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the public;

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 295); and

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government’s official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

(b) REPORT.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report—

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government’s official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

In short, Eric Holder and James Clapper came to SSCI on February 2 and told the committee about a way the government was broadly interpreting FISA and the powers expiring next Monday.

This Amendment would require Holder to admit to what the government was doing, in broad terms, without revealing what kind of surveillance was going on.

This probably pertains to the Section 215 authorities; we know they’re using it to construct databases of people who buy hydrogen peroxide and acetone. But I would bet there’s a more generalized collection program that results in more databases they can mine. A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

Don’t you think the time to press for such admissions is before this shit gets re-upped for another four years?

Update: Apparently this isn’t even among the amendments Reid is pulling parliamentary maneuvers to avoid even discussing. So I guess this is just an effort to wave a flag saying, “PATRIOT isn’t what it says it is?”

War, Intelligence, Law and Forever

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There are a number of oddly coinciding legal issues that I wanted to pull together into one post.

The Administration Fudges the War Powers Act

First and most obviously, today is the day the 60-day grace period for Libya under the War Powers Act expires. Obama should, by law, have to go to Congress to get sanction for our third war against a Muslim country.

Mind you, Congress isn’t going to make the President do that.

But just to be safe, the Administration is going to conduct some kind of legal hocus pocus to make sure it can claim it isn’t violating the WPA.

A variety of Pentagon and military officials said the issue was in the hands of lawyers, not commanders. Several officials described a few of the ideas under consideration.

One concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets.

Over recent weeks, the Predators have been the only American weapon actually firing on ground targets, although many aircraft are assisting in refueling, intelligence gathering and electronic jamming.

By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.

Another idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.

My money, given the way that the OLC wrote a memo retroactively justifying the first several weeks of the war that culminated with us ceding control to NATO (and for other reasons), is that we’ll choose option A; we’ll pretend that we’re just conducting a very expensive unfunded intelligence operation in support of our NATO allies and call that good.

Congress Tries to Force Obama to Fight the Forever Whereever War

Then there’s the Republicans efforts to rewrite the AUMF in the spending bill, which would make it a lot easier to pass without a lot of debate and certainly without concerted attention to it. Ben Wittes has been orchestrating a debate on this topic over at Lawfare (here, here, here, here, here, here, and here).

There are a couple of elements to this. First, the belief by both the right and left that the Administration has already exceeded the terms of the Afghan AUMF by striking at groups that either didn’t exist in 2001 or didn’t support the 9/11 attacks. If we’re right, it would mean such things as drone strikes in Yemen are legally questionable. And for those who believe we must use drones in Yemen and Somalia, it seems clear we must rewrite or expand the AUMF to incorporate these new targets.

In addition, there’s the question of detention. I believe that we are close to sufficiently achieving the objectives in the 2001 AUMF that it might require Obama to base the detention of Gitmo detainees on something more permanent. McKeon would like to institutionalize Obama’s preferred indefinite detention, but by endorsing detention going forward, might invite further indefinite detention.

There are probably some other things our government is doing under the guise of war that we don’t know about (but that McKeon presumably does and endorses).

But for the moment, let’s assume that the forever whereever war authorizes the President to continue to make up the rules of this war as he goes forward, with no defined end point.

And, as Adam Serwer implies, McKeon is doing this not via free-standing statute (which is what he first tried), but on the spending bill, making it much harder to oppose.

But the country never made that decision–the country made the decision to go to war against the perpetrators of the 9/11 attacks. That’s why I think that this new AUMF shouldn’t be something that gets tucked into a spending bill–it’s the kind of thing that the American people need to consider carefully. I suspect public opinion is probably on McKeon’s side here, but at the very least, a separate vote on a new AUMF would have the advantage of sanctioning this larger conflict in a more public and accountable manner. More importantly, we could be having a conversation of what the end of the “war on terror” is supposed to look like.

This is, in other words, the head of the House Armed Services Committee acting where he has greatest powers, in mapping out how DOD can spend money, to institutionalize the authority of the President to evolve the terms of the war against terrorists as he goes on.

PATRIOT without Sunset

At the same time as one corner of Congress is acting at the area of its strength, another corner of Congress is acting with typical cowardice. John Boehner, Mitch McConnell, and Harry Reid are pushing a vote on Monday to extend the PATRIOT Act another 4 years, until June 1, 2015.

Mind you, it might not be just their idea. This is the kind of thing Obama might encourage (though the Administration reportedly backed some, but not all, reforms on the table). This is a way for everyone involved–except for the liberals and handful of TeaParty candidates who will oppose the bill–to just endorse the status quo rather than acknowledge that PATRIOT has some real problems as well as some unnecessary authorities.

And so, with each new extension of a PATRIOT sunset, the myth that it actually will ever sunset gets weaker and weaker.

Read more →

Reid and Republicans Tee Up Another PATRIOT Extension

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This is the disrespect in which our Congress holds our Constitution: they will continue to chip away at the Fourth Amendment, by passing yet another extension of the PATRIOT Act without addressing the clear abuses identified since the last extension.

US Congress leaders have agreed to extend for four years an array of counter-terrorism surveillance and search powers adopted after the September 11, 2001 attacks, sources said Thursday.Under the arrangement, the Senate and House of Representatives will hold a vote on extending the controversial powers at the core of the Patriot Act before they lapse on May 27, according to several congressional aides.

The officials said the vote would be “a clean extension” to June 1, 2015, meaning it would not include new civil liberties safeguards sought by some senior lawmakers of both major parties.

Apparently, it’s just too much work to do their fucking jobs and deal with the sound reform proposals on the table.

The ACLU is trying to get a barrage of contacts to legislators.

But if your legislator is either a real liberal or a TeaPartier, please contact them one way or another.

Please Help Support My Next 525 Posts on Torture

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Just over two years ago, right around the time I reported that Khalid Sheikh Mohammed was waterboarded 183 times in a month, many of you chipped into the “Marcy Wheeler fund” to support my work; that generosity paid my way until a short time ago. Here’s what that support made possible.

Between May 1, 2009 and yesterday, by my rough count, I wrote 525 posts on torture. I unpacked the torture memos, the CIA IG Report, the OPR Report, and thousands of documents released through FOIA. I showed the bureaucratic games they used to set up our torture program, early efforts to place limits on things like mock execution, followed by more bureaucratic and legal means to get away with violating even those limits. I showed how they hid documents and altered tapes to hide evidence of their torture. I showed how, after CIA and parts of DOJ tried to put limits on torture in 2004, they again used bureaucratic tricks and ridiculous legal documents to reauthorize it. I’ve tracked DOJ’s kabuki claims to investigate torture (though bmaz gets credit for forcing DOJ to admit John Durham’s torture tape investigation had run out the clock on Statutes of Limitation). And I’ve tracked the Obama Administration’s successful efforts to suppress all evidence of torture. And all the while, I’ve relentlessly pushed back against the torture apologists’ lies.

Of course, while writing about torture is a major part mapping out the decline of the rule of law, it’s not the only part. Since May 2009, I’ve written almost 200 posts on wiretapping, almost as many on our Gitmo show trials, posts about state secrets, drones, fusion centers, the forever war metastisizing around the world. I’ve written about Wikileaks and Bradley Manning’s treatment and the banksters and the auto companies.

Cataloging the decline of the rule of law has been exhausting and infuriating. The work has been challenging.

But most of all, it has been humbling. That’s because you made this happen, as much as I did.

In addition to the absolutely brilliant observations you’ve made in comments, your support, two years ago, made this work possible. I’m profoundly grateful that many of you invested your faith and financial support in my work.

And now I’m asking for your faith and financial support again, to support the next 525 posts on torture. This time that support will come in the form of an ongoing Firedoglake membership. By becoming a member of Firedoglake, you will not only give my work some stability over the long term, but support the superb work of Jane and DDay and Jon Walker, and just as importantly, the work of the people backstage who make this all technically possible. And you will become a closer part of our efforts to push our country in the right direction, to return to the rule of law.

Please join Firedoglake today.

I hope some day soon we’ll begin to make headway against our expanding national security state. I hope some day, I won’t feel the need to write a post on torture five days a week. But until then, I feel compelled to write about what is happening to our country. And I can only continue to do that with your help.

More on the Year-Long Pursuit of Mohamed Mohamud

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Teddy did a diary this morning on a newly-reported detail in the case of Mohamed Mohamud–the Portland man accused of attempting to set off a bomb. The FBI had contacted him a year earlier than originally disclosed. The first contact with Mohamud the complaint describes took place in June 2010, after Mohamud was prevented from boarding a flight to Alaska.

On June 14, 2010, MOHAMUD was contacted at Portland, Oregon International Airport after he attempted to board a flight to Kodiak, Alaska. MOHAMUD was not allowed to board the aircraft. Shortly thereafter, MOHAMUD was interviewed by the FBI.

Shortly thereafter, an undercover agent contacted Mohamud, leading up to the July 30, 2010 meeting that was not taped.

An FBI Undercover Employee (UCE1) contacted MOHAMUD in June 2010 under the guise of being affiliated with UA1 and UA1’s associates. MOHAMUD and UCE1 ultimately agreed to meet in Portland on July 30,2010.

But a filing submitted yesterday shows that the Oregon State Police got a report on him in November 2009, after which an FBI agent named Bill Smith started contacting Mohamud.

As noted above, the government seeks to characterize a November 2009 interaction withMohamed as “an unrelated matter.” Resp. at 17. While the direct contact with Mohamed appeared to involve only the Oregon State Police (OSP), the FBI was clearly involved behind the scene. As the government has only provided minimal discovery related to the FBI’s involvement, with much of it redacted, Mohamed cannot assess the extent of the information the FBI gathered andsubsequently used in crafting its sting operation.

What the discovery does show is that the OSP immediately notified the FBI upon receiving a complaint about Mohamed, despite the fact that the substance of the report would ordinarily not result in FBI involvement. Although the redactions in the FBI report prevent the defense from understanding the full scope of the FBI’s role, it appears that agents met with OSP officers prior to contact with Mohamed and were involved with the subsequent interview. OSP then requested consent to image Mohamed’s computer, which was provided to an FBI analyst within hours. Seven days later, agent Bill Smith began contacting Mohamed and soliciting his participation in violence against the West. A short time later, the FBI analyst copied specific information from Mohamed’scomputer and provided it to a fellow agent. The analyst did not write a report of his actions until ayear later.

Other filings make it clear that the OSP polygraphed Mohamud at this point and suggests the search of his computer was consensual.

At first, the government didn’t admit that “Bill Smith” worked for the government (and it remains unclear who he works for). Only after the defense confronted them with that fact did they concede he was, but they claimed these earlier contacts have no connection to this case.

The discovery provided up to [the discovery deadline of February 15] and after included no indication that Bill Smith was a government agent. The government must possess the paperwork and reports that are necessarily generated by a government agent who contacts a citizen for such investigative purposes. If not for fortunate defense work, this exculpatory fact would have continued to be suppressed. It was only by backtracking through voluminous emails, and clearing out hundreds of lines of distracting code, that the defense was able to understand Bill Smith’s apparent connection to the government. Once confronted with the defense conclusions,the government admitted Bill Smith acted as a government agent. However, the conscious determination by the agency that Bill Smith should not be disclosed to the defense as an agent,purportedly because the government does not believe the information is helpful to the defense,establishes that the government alone should not be permitted to determine what is exculpatory without this Court’s supervision and instruction.

While the government claims this contact was discontinued in May 2010 (a month before the contact they claim started this investigation), Mohamud continued to email “Smith” until August 2010.

Bill Smith had e-mail contact with defendant beginning in late 2009 and continuing through May 2010. The contact with Smith did not relate to the facts of this case, and was discontinued by the government. Defendant, however, on his own continued to contact Smith through August 2010, after the government had ceased contact with him, by forwarding Smith e-mails, including one that supported violent jihad.

The fact that the government delayed admission of these earlier contacts also means the government has not disclosed the extent to which this earlier contact was used to tailor conversations with Mohamud.

[T]he undercover agents clearly used information from surveillance activities in approaching Mohamed. One obvious example is that agent Bill Smith attempted to ingratiate himself with Mohamed by recommending an online publication based on the government’s belief that Mohamed had connections to the publication.

While it appears that Mohamud was under surveillance before the first contact with the OSP (the complaint cites some emails he had with someone in Yemen August 2009), the earlier contact raises a whole bunch of questions about what led the government to pretend to follow-up on his emails in June 2010.

Two WMD Terrorists, the President’s Daily Briefing, and Lone Wolves

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This Time article is designed to be a swan song to Robert Mueller’s career; it builds over almost 6,500 words to the conclusion that, “Most people inside the bureau believe that the blown opportunities to head off 9/11 would not recur today.” Mueller, the article suggests, has fixed the problems that led the FBI to miss 9/11.

But a number of details make the article well worth a very close read. For example, it:

  • Provides an example of the kinds of things that make it into Mueller’s daily brief
  • Describes how Mueller almost quit when the White House ordered the FBI to return materials seized from William Jefferson’s congressional office
  • Describes one of Mueller’s futile attempts to get our supposed partner in the war on terror, President Ali Abdullah Saleh, to arrest Jamal al-Badawi, the USS Cole bomber

Of particular interest, though, is the article’s description of the FBI’s parallel tracking of two alleged WMD terrorists: the Saudi Khalid Ali-M Aldawsari and the white supremacist Kevin William Harpham.

Two men, 1,300 miles apart, had Mueller’s attention when he convened his operations brief on Feb. 17. Khalid Ali-M Aldawsari, a 20-year-old Saudi national, studied chemical engineering at Texas Tech University. Kevin William Harpham, 36, an unemployed Army veteran and avowed white supremacist, lived in a small town near Spokane. On this day the FBI’s interest was a closely guarded secret, but indictments to come would allege that the two men were behind separate plots to set off powerful homemade bombs. Until recently, the FBI had not heard of either man.

The Spokane attack struck without warning on Jan. 17. Shortly before the start of Spokane’s Martin Luther King Jr. Day parade, city workers found an abandoned backpack along the route. Inside was an explosive core laced with rat poison — an anticoagulant — and surrounded by lead fishing weights. A remote car starter and cell-phone parts were mated in a detonation circuit. The FBI lab in Quantico, Va., recovered DNA, but there was no suspect to test for a match.

Good luck and shoe leather led the FBI to Aldawsari, the Saudi student. One of the trip-wire programs rolled out after 9/11 invited vendors of hazardous goods to report unusual purchases to the feds. Aldawsari went undetected at first as he acquired the ingredients of TNP, an explosive used in World War I artillery shells. Amazon.com filled an order for 3 gal. of concentrated sulfuric acid, and the Georgia-based QualiChem Technologies shipped 10 boxes of nitric acid to a FedEx mail drop. Neither reported the buys. Aldawsari also dodged a student-visa review after flunking out of Texas Tech. Only on Feb. 1, when he ordered phenol, his last ingredient, did Aldawsari trip an alarm. Carolina Biological Supply tipped the FBI’s Charlotte, N.C., field office, and Con-Way Freight, where Aldawsari planned to take delivery, sent word to the Dallas field office by way of the Lubbock police.

By showing the parallel pursuit, Time reveals something disturbing about our country’s pursuit of terrorists. While the President gets briefed on suspected Islamic terrorists, he doesn’t get briefed on suspected right wing terrorists.

Harpham’s plot, if the allegations prove true, turned out to be the more advanced. He had built a powerful bomb and placed it, for maximum carnage, atop a metal bench with a brick wall behind it to focus the blast. The half-complete work of Aldawsari, an Arab whose jihadi aims fit the popular image of a terrorist, received far more public attention. More than a year ago, Mueller raised some eyebrows when he testified that “homegrown and lone-wolf extremists pose an equally serious threat.” But that message did not take root in the body politic or even in the national-security establishment. As the FBI chased the twin terrorist plots all through February, President Obama’s team heard daily reports about Aldawsari’s case but not Harpham’s. Some of Mueller’s lieutenants marveled at the contrast.

Domestic plots are not routinely included in the President’s daily briefing or the interagency threat matrix, an FBI official says, even though “the degree of harm is often greater” than in jihadi terrorist plots.

This is a troubling revelation, particularly in an article that concludes the FBI would have prevented 9/11. It suggests that the FBI–and the President–might still miss a similar attack launched by the next Timothy McVeigh. Billions of dollars and an entire shift of focus, and yet we’re still not watching white terrorists as closely as we watch brown ones.

And on the subject of terrorism investigation, the Time article explains–but does not emphasize–an important detail about the investigation of Aldawsari. As I noted when he was arrested, he was the perfect candidate for a Lone Wolf warrant. He was a non-resident alien and when we got a lead on him he appeared to be (and in fact turned out to be) acting alone. He’s just the kind of self-radicalized non-US person whom the PATRIOT Act’s Lone Wolf provision is meant to target. But, as Acting head of DOJ’s National Security Division Todd Hinnen revealed to Congress in March, we didn’t use the Lone Wolf provision to investigate Aldawsari. Time provides some details about what we did use.

When Mueller convened his executive team on Feb. 17, Aldawsari had been under a microscope for two weeks. Four shifts of agents watched the Saudi engineering student 24 hours a day. Vehicles equipped with StingRay transceivers followed him around greater Dallas, recording his cell-phone calls. Agents had slipped secretly into Aldawsari’s apartment, armed with a warrant from the Foreign Intelligence Surveillance Court. They inventoried his chemicals, cloned his computer drive and copied a journal handwritten in Arabic.

Hours before that morning’s briefing, Aldawsari had published a blog post alluding to a special celebration of his upcoming 21st birthday. One of his handwritten journal entries, according to a hasty FBI translation, said, “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for jihad.”

[snip]

In Lubbock, the team that searched Aldawsari’s apartment had been interrupted and did not have time to learn whether he had unpacked his chemicals or whether he had the makings for a high explosive that required no phenol. The hasty retreat also left a gap in electronic surveillance, which nowadays has to include not only phone taps and pinhole cameras but voice-over-Internet, social-network messaging and online-gaming consoles. The Texas plot was unfolding across three e-mail addresses, which sent one another lists of “targets” and “nice targets” and directions for handling TNP. Was it one man? Two? Three?

The search team had to get back in. Mueller had no patience for explanations that agents were doing “pattern-of-life analysis” to find an opening. “You’re not getting it done,” Mueller said. “What are you going to do about it?” Later that day, the sneak-and-peek squad got it done. Then the investigators solved the mystery of the three e-mail addresses: Aldawsari was using all of them, they concluded, to send notes to himself.

While this passage doesn’t explain all of the warrants (or lack thereof) the FBI used to investigate Aldawsari, it’s clear they were able to get a Sneak and Peek warrant (as well as, presumably, warrants to wiretap his communications) without having to resort to the Lone Wolf provision. That seems to support the argument of those like Julian Sanchez, that investigators have the tools they need to find someone like Aldawsari without continued approval of the Lone Wolf provision.

Besides, the Lone Wolf wouldn’t be available to investigate the far more dangerous bomb used in the MLK Day attempt. Maybe we should focus on guarding against terrorist attacks by American citizens rather than trying to extend powers we don’t need to investigate the non-citizens we’re already scrutinizing closely.

The March–and April or May–2004 Changes to the Illegal Wiretap Program

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Apologies in advance. I’m going to be in the weeds reading the May 6, 2004 Goldsmith opinion for a little bit.

In this post, I want to point to some details of timing that, I think, suggest that the changes DOJ made to Cheney’s illegal wiretap program in 2004 included, first, a limitation on collection to people with actual alleged terrorist ties (but not just with al Qaeda), and second, a shift of the data-mining part of the program under other parts of the PATRIOT Act.

What follows is largely a wildarsed guess.

The Half-Redacted Timing of the Post-Hospital Changes

As I noted in my working thread, DOJ has redacted part of the date of the 2004 modifications in the table of contents and pages 9 and 11. But on page 16, it has left unredacted a reference to a March 19, 2004 redaction. The opinion itself gives partial explanation for this: Goldsmith refers to “those” modifications, plural, on page 9, and describes a “series of changes” on page 11. The existence of more than one modification is confirmed by the IG Report, which says,

Notwithstanding Gonzales’s letter, on March 17, 2004 the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported. The President’s directive was expressed in two modifications to the March 11, 2004 Presidential Authorization.

Though note the slight discrepancy between Goldsmith’s reference to a “series” (which to me means more than two) versus the IG reference to two modifications.

Now, the redactions and common sense suggest when at least one of the other changes must have taken place. Since Goldsmith wrote the memo on May 6, the redacted phrase can only be “April” or “May.” Given the spacing in the redactions–particularly the one in the second line of the only complete paragraph on page 11, which takes up the same space as the 9 characters “concernin” in the line below–it is unclear which it would be. It might read “and April ” or it might read “and May, “. It is worth noting that if the March 11 authorization were a 45-day one, it would have expired on April 25 and left, without this May 6 opinion, the program working without any basis still. Yet SSCI has told us the March 11 authorization was for “not more than 60 days,” which would have extended to May 5. For these and other reasons, my guess is May (suggesting that Goldsmith waited until the last changes were made to write his memo), but that’s just a guess. And DOJ, obviously, isn’t telling.

[Update: Thanks to William Ockham, who did the kerning work, it looks like “May” is correct.]

The March 19 Modification Limits Content Collection to Terrorist Conversations

On page 16, Goldsmith writes,

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [~ 6-7 word redaction] He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group

Further down that page, Goldsmith begins the list of the only three things this opinion authorizes. The first is:

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Goldsmith’s language here is remarkably similar to that he used in some of the letters he wrote at precisely the same time limiting the torture program. In both cases, he is trying to impose limits on a program that has already exceeded those limits. That, plus the reference to Bush’s “clarifi[cation]” of the scope of the program suggests the limit on intercepting the content of conversations in which one party is a terrorist is new.

I’ll have much more to say about this. But note that Goldsmith’s limit here does not match the terms of the Afghan AUMF, which is limited to those who were directly tied to 9/11.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

In other words, while the requirement that the program collect content only from those with a tie to a terrorist may be a new limit imposed in 2004, it also seems to exceed the very AUMF that Goldsmith was newly relying upon to authorize the program.

Goldsmith does have one out for that problem. As he notes elsewhere, the Afghan AUMF language on terrorism is repeated (and actually expanded) in the Iraq AUMF.

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Did you know that the Iraq AUMF mentions “terrorist” or “terrorism” two more times–19–than it mentions “weapon”–17?

So writing in 2004, I guess, Goldsmith could claim that a still-active AUMF authorized war against terrorism more generally. Now, we apparently just avoid written AUMFs altogether.

And with it, he authorized the interception of content of not just al Qaeda affiliates conversations, but of any terrorist who was at war with the United States. I wonder if Hamas and FARC are included in that?

The April or May Change(s)

But that’s just the change DOJ is willing (sort of) to let us know about. What about the other changes?

While I can’t say for sure, consider the following data points.

First, note that Robert Mueller’s chronology of the warrantless wiretap confrontation had what used to seem like a bizarre end date. He shows multiple contacts a day with Jim Comey until March 17. Shortly thereafter on March 19, it appears, Bush at least narrowed the content collection to actual alleged terrorist conversations. But then there’s a March 23 meeting between Mueller and Dick Cheney, at the Vice President’s request and in his office.

Next, remember there’s a great deal of evidence–including reporting during the Protect America Act debate–to suggest that data mining was one of, if not the key, problem behind the hospital confrontation.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

Then, note that the day after Mueller’s meeting with Cheney, FBI moved toward actually using Section 215 of PATRIOT, which they had not done previously.

Finally, consider some of the changes made to the way Section 215 and NSLs were used that year–effectively using them to collect call data–and Section 215 specifically to support a secret program in 2005.

So Lichtblau suggests that the big change–the one DOJ won’t let us know about–has to do with searches of massive databases of records of phone calls and email messages of millions of Americans. And on they day after a private Mueller meeting with Cheney but probably before the second (at least) big change from spring 2004, FBI starts using the provision they would go on to use, some time in 2004, to collect call data. (And sometime in 2005 Section 215 came to be used to support a secret program unto itself.)

In any case, this is a wildarsed guess. But it appears likely that DOJ stopped acquiring metadata on calls to use in data mining in one fashion, and instead started using Section 215 and trap and trace requests to get the data.

Given the Bybee memo we’ve recently discovered which seems to support fairly expansive use of databases, however, I’m guessing they didn’t stop doing data mining of the call data.

Another Secret OLC Opinion: This One on Information Sharing

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As MadDog and I were discussing on this thread, the May 6, 2004 Jack Goldsmith opinion on the warrantless wiretap program references an OLC opinion that appears not to have been publicly released or, even in the course of FOIA, disclosed.

Thus, this Office will typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander-in-Chief powers. Cf, id. at 464-66 (applying avoidance canon even where statute created no ambiguity on its face). Only if Congress provides a clear indication that it is attempting to regulate the President’s authority as Commander in Chief and in the realm of national security will we construe the statute to apply.19

19. For example, this Office has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

This is probably a memo examining what kind of limits section 203 of the PATRIOT Act impose on Executive Branch officials. That section permits the sharing of Grand Jury and Title III wiretap information with the intelligence community–even information pertaining to US persons. But it requires that, “any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

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