If you missed the thoroughly depressing PATRIOT Act hearing today, this was one of two highlights. Listen carefully at 17 seconds where someone who sounds like Pat Leahy sighs, “Oh boy.”
The rest of the hearing featured Democrat after Democrat arguing that we need to develop lists of all the potential suspects out there buying acetone and hydrogen peroxide.
You can watch here.
Nice. Leahy started by referencing Obama’s statement to NCTC and references the Zazi and other arrests.
Leahy: We can’t go into what was said in a highly classified briefing. Need for prompt action and tools they need. Our bill increases use of congressional and judicial oversight.[repeats for emphasis] We have done so without undermining operational effectiveness of counterterrorism tools. On the last point I don’t think there would be any doubt following the highly classified briefing.
Oversight oversight oversight.
But no Fourth Amendment.
Leahy: On matters currently before Supreme Court we should move carefully.
Leahy’s pretty determined to push this through without Feingold holding things up.
Sessions: What we don’t all agree on is that the PATRIOT Act is not an overreach. Classified briefing. See if we can agree on language. Operation difficulties have been altered. Five amendments to address operational issues. One, on pen registers minimization. Remember, pen registers just pick up numbers, not content. [Uh, and names, and with email, probably subject lines.] Judicial review standards for NSL non-disclosure orders. "Judges should not have discretion" to refuse a non-disclosure order if govt meets the burden.
How nice that the ranking member of SJC wants to gut Article III of the Constitution.
LOL!! Sesssions trying to eliminate library exception with "the Fourth Amendment."
Sessions, on pen registers, claims no content. (Um, except for the subject lines of emails?)
DiFi: NYT wrote article about efforts to come together. Responds to problems found by courts–Doe v Mukasey–having to do with disclosure. On its face, limits to terrorists and spies makes sense. HOwever, for reasons that get classified very quickly, would unacceptably affect terrorism cases. Najibullah (she can’t pronounce) was case in point. I did not describe why. I asked Kris whether anything in this bill would obstruct any ongoing investigation. He said "I cannot say in public session." Briefing from head of NCTC. Both he and Kris said that new language solved trap and trace. Court very engaged. Not just perfunctory review.
BullSHIT!!! If the court can only review the FBI Agent’s theory, then it becomes perfunctory.
DiFi: Dead wrong when it says the bill has excesses that contribute nothing to making Americans safer.
Kyl: Unfortunate that some of our deliberations have to be in classified setting. Regrettable that great newspaper like Times can’t be privy to all those discussions.
(Talk to Lichtblau and Risen!!)
In my last post, I showed how Section 215 authority grew over time, potentially in response to legal challenges to other domestic surveillance programs. I’m going to look at what that might mean for the expanded use of 215 authority in 2006 in a later post.
But first, I want to look at one passage in the 2007 IG Report on Section 215 that is relevant to current efforts to reauthorize PATRIOT. The report explains how–faced with a looming reauthorization fight–DOJ scrambled to actually make use of the Section 215 authority.
By early 2005, the Department faced the "sunset provision" of Section 215, pursuant to which the authority would lapse or "sunset" unless Congress affirmatively renewed the provision. In April 2005, FBI officials testified before Congress about the FBI’s use of the authorities provided by the Patriot Act. This generated a renewed emphasis within the FBI’s Office of General Counsel on the use of the Section 215 provision.
By this point, the FBI was just using tens of Section 215 orders a year. In 2005 that expanded (partly through the use of combo orders designed to get subscriber information for trap and trace orders), and in 2006 it blossomed into at least one entirely new, secret program.
Meanwhile, remember what else happened. The Senate Judiciary, after a hearing including testimony from Robert Mueller in April 2005, unanimously supported new limits on Section 215, which would have required some specific tie to terrorism or a foreign power before an order could be used to obtain records pertaining to a person. The House, on the other hand, supported small changes which nevertheless still allowed use of Section 215 to access records of people with no tie to terrorism. That fall, the conference process was gamed to make sure the House bill would prevail.
In other words, at the same time someone was pushing Congress to keep the more permissive standard for Section 215, FBI was scrambling to actually use the authority–perhaps at least partly to justify its continued existence!
And somehow, out of that process, Section 215 came to be used to legally authorize entirely new programs in 2006, after the reauthorization process.
I wanted to turn to the two IG Reports Glenn Fine did on the PATRIOT Act’s Section 215, the section that allows investigators to get business records and other tangible items. (2007 report covering 2002 to 2005; 2008 report covering 2006) The reports show an expansion of the way DOJ used the authority that parallels the known history of Bush’s illegal domestic surveillance program.
For the first two years after passage of the PATRIOT Act, not one 215 order was issued. Some were applied for, but all either were withdrawn because of legal ambiguities (could they be used to get school records?), legal reviews, and/or inattention. Then in October 2003, someone in DOJ focused effort on pushing some through, and one of the orders submitted in that month was approved in May 2004–though we’re not allowed to know the date (see page 17 of the 2007 report). Now, it appears the May timing may be coincidental; the order came out of efforts in October 2003 to start using this authority, not as a response to the hospital confrontation concerning Bush’s illegal domestic surveillance program in March 2004. But nevertheless, the first 215 order was authorized just as DOJ issued a new opinion authorizing parts of Bush’s domestic surveillance program on May 6, 2004, at a time when the data mining aspect of the illegal program had (reportedly) been halted by Jim Comey and Jack Goldsmith.
Later, for a year and a half, 215 orders started to serve a function with pen register/trap and trace orders. This was necessary for a period until the PATRIOT revision in 2006 because FISA pen registers didn’t give investigators all the information they wanted.
A "combo" application is a term used by OIPR to refer to a Section 215 request that was added to or combined with a FISA application for pen register/trap and trace orders. The use of the combination request evolved from OIPR’s determination that FISA pen register/trap and trace orders did not require providers to turn over subscriber information associated with telephone numbers obtained through the orders. Unlike criminal investigation pen register/trap and trace orders, which routinely included a clause requiring the provision of subscriber information, FISA pen register/trap and trace orders did not contain such provisions. Thus, while the FBI could obtain the numbers dialed to and from the target number through FISA orders, FBIA agents had to employ other investigative tools, such as national security letters, to obtain the subscriber information. (2007 report, 16)
Here’s what I understand this to mean (the lawyers in the crowd should feel free to correct this). The report explains there was a difference between trap and trace orders on phone numbers (and email accounts, presumably) in the criminal and FISA setting. In the criminal setting, you automatically got the names, as well as the numbers, that the target had contacted. You got to know right away that Rudy the street dealer had contact with Carlos the big time dealer. But with FISA, you just got numbers. Read more →
For the second time today, the WaPo has a very obedient regurgitation of DOJ’s efforts to use the Zazi investigation to push for reauthorization of the PATRIOT Act. There’s the proclamation that the plot was very serious (which I am not challenging).
Attorney General Eric H. Holder Jr. said Tuesday that an alleged hydrogen peroxide bomb threat was "very serious" and "could have resulted in the loss of American lives."
[snip]
Holder declined comment on the next phase of the investigation, including the timing on possible arrests. He nonetheless expressed confidence that authorities had defused the alleged al-Qaeda-inspired threat, which may have been intended to kill "scores" of Americans.
Tied to the call for Congress to "swiftly" reapprove PATRIOT provisions.
Holder used the occasion to call on Congress to swiftly reauthorize provisions of the USA Patriot Act, including tools that allow the FBI to conduct roving wiretaps of suspects, that have helped the bureau and its law enforcement partners in multiple cases. He nodded to the concerns of civil liberties advocates by acknowledging, "There’s certainly a conversation that can be had about, do they need to be reexamined," but Holder went on to assert that "the tools as they exist are valuable and not in a theoretical sense."
And, as with the WaPo article this morning, this article accepts the Administration’s focus on roving wiretaps, when that’s not really the focus of any challenge to PATRIOT reauthorization.
Say, Justice press corps … any chance you might point out that the real questions pertain to Section 215, NSLs, and data mining aspects of the domestic surveillance program?
Update: Oh!! Ask and you shall receive! Apparently a few members of the Justice press corps did ask these questions, though Holder didn’t answer them. From Josh Gerstein:
Holder said Foreign Intelligence Surveillance Act orders produced "much of the information" in the case, but he did not offer details on how Patriot Act provisions were used in the case. He also rebuffed questions about why those tools are superior to conventional authorities and why the Justice Department is vigorously opposing attempts in Congress to raise the threshold of proof needed to issue demands for information in connection with terrorism investigations.
"The existence of these tools is of great assistance to us," Holder said.
Update: Josh has put up a post with the explicit detail from today’s presser on Section 215. Here’s an excerpt, but go read the complete Read more →
To be fair to Obama, his statement at the NCTC focused more on unity of mission than it did on pushing through PATRIOT (as I had feared).
And I think Obama is absolutely justified in thanking the NCTC for the work it has done recently to break up Zazi’s alleged attack.
I’ve bolded the comments I find most interesting.
THE PRESIDENT: Thank you so much, Mike, for the introduction. Usually it’s Mike who comes to brief me at the White House. Today, it’s my honor to visit you in your house. I was just told this is called the "bat cave," is that correct? (Laughter.) Mike, thank you for your many years of public service and your outstanding leadership at the National Counterterrorism Center.
It is great to be with all of you. It is great to be here at the hub — at the headquarters of our efforts to defend America from those who threaten our country and so many others. Our intelligence community is comprised of 16 organizations. We have countless federal and state and local and international partners. And this is where it has to all come together.
So I’m pleased to see Denny Blair and those of you from the Office of the Director of National Intelligence. We have folks here from the FBI and the CIA. We have folks from across the federal government — intelligence, law enforcement, homeland security and so many others. My understanding is we’ve even got some of New York’s finest — some NYPD folks who are here.
Standing together and serving together, it’s clear for all to see — that you are one team — that you are more integrated and more collaborative and more effective than ever before. And you’re focused on one defining mission, and that is to protect the United States of America and thwarting terrorist attacks around the world.
I guess I’m not the only one who noticed that DOJ is trying to reauthorize Section 215 without leveling with the American people how they’re using it. John Conyers, Jerrold Nadler, and Bobby Scott have written Eric Holder, requesting that he make more information on the way Section 215 is used public.
In order to meaningfully consider whether and how to extend the "business records" section of the Act, however, we ask that the Department work to provide additional public information on the use of that provision.
Specifically, at the September 22 hearing, Deputy Assistant Attorney General Hinnen testified that orders under Section 215 of the Act, which authorizes compulsory production of "business records," have been used to obtain "transactional information" to support "important and highly sensitive intelligence collection." He explained that some members of the Subcommittee and cleared staff have received some briefings on this topic, and that additional information could be made available to them "in a classified setting."
We have appreciated the information that has been provided, and fully understand the importance of safeguarding our country’s national security secrets. Too often in 2007 and 2008, however, crucial information remained unknown to the public and many members of Congress when Congress voted on important surveillance legislation affecting the interests of all Americans. As has also been requested in the Senate, we ask that the Department work to make publicly available additional basic information on the use of Section 215, so that Congress can more openly and thoroughly consider the future of this authority while fully protecting our national security secrets.
I’m hoping they have more leverage than Russ Feingold, who I believe made this request in the Senate, since nothing is going to pass through HJC without these three gentlemen’s involvement.
In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215.
Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.
But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.
The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.
Sensenbrenner’s bill introduced the following language into Section 215, requiring that,
the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.
That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.
But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.
I’ve been focusing on how Section 215 of the PATRIOT Act may have been used to investigate Najibullah Zazi, but Dina Temple-Raston had a great story yesterday cataloging the range of techniques (though she doesn’t name Section 215 specifically).
Intelligence Tip
I’ve seen a number of vague suggestions for when investigators first focused on Zazi. While she doesn’t describe it as the first thing that made investigators focus on Zazi, Temple-Raston does reveal that Pakistani intelligence gave the US information about Zazi’s actions in Pakistan.
Sources say officials acted after Pakistani intelligence allegedly told them that Zazi had met with al-Qaida operatives there.
From the context, it appears the US may have gotten this tip shortly after Zazi returned to the US in January.
FISA Roving Wiretap
From there, it appears the FBI applied for an got a roving FISA wiretap. Temple-Raston provides a detailed explanation of what a FISA wiretap is, noting that it can be used for emails as well (remember that investigators had identified three email addresses Zazi used).
In his case, officials tell NPR they asked a judge for what’s called a roving FISA wire tap.
[snip]
Law enforcement officials close to the Zazi case tell NPR that the FBI applied to a special court for the wiretap months ago.
And note, since they already had intelligence from the Pakistanis, it would presumably have been easy to justify a traditional FISA warrant–not to mention establish reasonable cause for any of the other FISA or PATRIOT Act tools in question.
Physical surveillance
After they got contacts from Zazi about developing bombs (perhaps in July or August?), it appears they started tracking Zazi more closely. The FBI followed Zazi all the way from Denver to NY–and staged a drug stop on the George Washington Bridge.
FBI agents followed him on the 27-hour drive. And, just to make sure they tracked Zazi closely, they asked local law enforcement for help along the way. Zazi was pulled over several times for speeding. He apparently got a ticket in Kentucky. And the FBI knew about it.
When Zazi neared New York City on Sept. 10, the New York police pulled him over on the George Washington Bridge. Officials familiar with the case tell NPR that was an orchestrated operation between the FBI and NYPD. They wanted to make sure there weren’t any chemicals or a bomb in Zazi’s car. They told Zazi it was a routine search and, just to underscore the point, pulled over other cars on the bridge as well.
I wanted to pull together the discussion in Thursday’s PATRIOT Act Hearing regarding the use of authorities within it–particularly Section 215–in existing investigations. DiFi initiates this discussion by referring to the "biggest investigation we’ve had since 9/11" (note, contrary to my earlier post, this reference is only implicitly related to the Zazi arrest.
DiFi (47:00): My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on. I also believe that we continue to face the very real threat of international terrorism. There are people who would hurt us grievously if they have an opportunity to do so, so again, I think it’s vital that we not take any action, especially at this time that would hinder the government’s ability to detect, investigate, and prosecute those who are intent on killing innocent Americans.
Note, too, DiFi’s reference to the "transfiguration" of FBI finally in place–is she suggesting that for the first time the FBI has used Total Information Awareness to support terrorist busts?
Later, during the discussion of Durbin’s attempt to limit the use of 215 to those with some discernible tie to a terrorist suspect, DiFi claims that such changes would end several investigations.
DiFi (101:31): Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations. This was one of the amendments that I submitted to you and you were gracious enough to accept it. Senator Sessions is correct. These are authorized investigations and it’s a use of the National Security Letter in an authorized investigation. So, as I said, a standard for me is that this not interfere in existing investigations, and in fact it would.
Understand the implications of that comment. Read more →