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Big Brother Works Both Sides of the Atlantic

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I was rather surprised that there seemed to be more outrage Sunday about the UK’s announced plan to roll out the same ability to monitor everyone’s online activity that the US set up after 9/11 then over Eric Lichtblau’s report–based on the ACLU’s FOIA efforts–revealing that cops all over the country are using our smart phones to spy on us.

At least from the published reports, it sounds like the Brits want to be able to do through GCHQ what NSA and FBI have been doing with hoovered telecom records for years.

A new law – which may be announced in the forthcoming Queen’s Speech in May – would not allow GCHQ to access the content of emails, calls or messages without a warrant.

But it would enable intelligence officers to identify who an individual or group is in contact with, how often and for how long. They would also be able to see which websites someone had visited.

[snip]

“What this is talking about doing is not focusing on terrorists or criminals, it’s absolutely everybody’s emails, phone calls, web access…” he told the BBC.

“All that’s got to be recorded for two years and the government will be able to get at it with no by your leave from anybody.”

He said that until now anyone wishing to monitor communications had been required to gain permission from a magistrate.

Plus, such plans will likely face more of a hurdle in Parliament than such schemes to expand surveillance face in Congress.

Meanwhile, the materials collected from all over the country via ACLU’s state affiliates show that local police are using some of the same approaches–things like communities of interest–that our massive data collection supports.

And as ACLU’s summary makes clear that not just the Feds using Secret PATRIOT, but local cops, are using cell phones to track people with no warrants.

Most law enforcement agencies do not obtain a warrant to track cell phones, but some do, and the legal standards used vary widely. Some police departments protect privacy by obtaining a warrant based upon probable cause when tracking cell phones. For example, police in the County of Hawaii, Wichita, and Lexington, Ky. demonstrate probable cause and obtain a warrant when tracking cell phones. If these police departments can protect both public safety and privacy by meeting the warrant and probable cause requirements, then surely other agencies can as well.

Unfortunately, other departments do not always demonstrate probable cause and obtain a warrant when tracking cell phones. For example, police in Lincoln, Neb. obtain even GPS location data, which is more precise than cell tower location information, on telephones without demonstrating probable cause. Police in Wilson County, N.C. obtain historical cell tracking data where it is “relevant and material” to an ongoing investigation, a standard lower than probable cause.

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What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
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Eric Holder Suggests Scary Iran Plot Was Legal

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I’m sure that Eric Holder didn’t mean to suggest that the assassination plots purportedly planned by Iran’s Quds Force and Manssor Arbabsiar with the assistance of a DEA informant targeting the Saudi Ambassador to the US, Adel al-Jubeir, as well as Israeli and Saudi figures in Argentina, are legal.

But given the debate between the ACLU’s Anthony Romero and Jack Goldsmith over whether assassinations in this country would be legal, I wanted to look at what he did say.

In their debate on WBUR’s On Point, Romero said something to the effect of Holder’s argument for targeted killing would serve as justification for other countries to target their own “terrorists” in our country. Goldsmith objected, saying such assassinations would only be legal in failed states (implicitly, like Yemen and Pakistan) where a state was unable to apprehend such a figure.

That’s not what Holder said. Here’s what he did say:

Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.   Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.   International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.  [my emphasis]

Strip this passage of its American exceptionalism, and here’s what it justifies: Read more →

Will SCOTUS Invent a “Database-and-Mining” Exception to the Fourth Amendment?

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As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…).

I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.

I make a distinction between foreign intelligence surveillance and “database-and-mining” exceptions because the government is, in fact, conducting domestic surveillance under these programs and using it to collect intelligence on US persons (indeed, when asked about Secret PATRIOT earlier this month, James Clapper invoked “foreign or domestic” intelligence in the context of Secret PATRIOT). The government has managed to hide that fact thus far by blatantly misleading the FISA Court of Review in In re Directives and doing so (to a lesser degree) here.

In In re Directives, the government misled the court in two ways. First, according to Russ Feingold, the government didn’t reveal (and the company challenging the order didn’t have access to) information about how the targeting is used. The amendments he tried to pass–and which Mike McConnell and Michael Mukasey issued veto threats in response to–suggest some of the problems Feingold foresaw and the intelligence community refused to fix: reverse targeting, inclusion of US person data in larger data mining samples, and the retention and use of improperly collected information.

The government even more blatantly misled the FISCR with regards to what it did with US person data.

The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions to not render those acquisitions unlawful.9 [citations omitted] The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.

9 The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice.

The notion that the government doesn’t have this US person data in a database is farcical at this point, as the graphic above showing the relative size of the NSA’s data center in UT–which I snipped from this larger ACLU graphic–makes clear (though the government’s unwillingness to be legally bound to segregate US person data made that clear, as well). Read more →

The Government Doesn’t Want to Talk about Collecting Domestic Communications under FAA

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On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.

The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.

One clause notably missing from the almost-sequential list above is 1881a(b)(4), which reads,

[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)

Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.

And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:

An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States

[snip]

Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.

And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:

“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

[snip]

In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:

[snip]

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

[snip]

Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.

[snip]

But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.

Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.

Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.

Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.

And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.

The Administration’s Many Excuses for Hiding Its Targeted Killing Memo

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Remember this article? It describes the debate within the Administration over how readily and extensively to acknowledge the US killing of Anwar al-Awlaki. As it describes, the debate was at least preliminarily resolved at a Situation Room meeting in November.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note especially the stance of Kathryn Ruemmler, the White House Counsel, who argued that any disclosures on the Awlaki killing “could weaken the government’s stance in pending litigation.”

That is, Ruemmler argued the Administration couldn’t voluntarily provide information about Awlaki’s killing, because it might mean it would have to involuntarily give that information up pursuant to a lawsuit over that information. Huh?

Since November, both the NYT (on December 20, 2011) and the ACLU (yesterday) have sued to get the Awlaki memo under FOIA (the ACLU is also suing to get the underlying evidence, including that relating to Samir Khan and Awlaki’s son Abdulrahman).

So I wanted to compare the different responses different agencies gave the NYT and ACLU around the same time that many top Administration officials were advocating for some kind of transparency even while the White House Counsel was arguing that doing so might lead to transparency. Here’s how the government responded to these FOIAs when (I’ve not noted the ACLU appeals, but all were appealed before the subequent follow-up):

Around June 2010: OLC completes Awlaki memo

June 11, 2010: NYT’s Scott Shane FOIAs DOJ OLC for memos on targeted killings

October 7, 2011: NYT’s Charlie Savage FOIAs OLC for memos on targeting killings

October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki

October 27, 2011: OLC denies both NYT requests under FOIA exemptions (b)(1), (b)(3), and (b)(5), and, in response to Shane’s request, also notes that with regards to other agencies, “neither confirms nor denies the existence of the documents” in the request

October 27, 2011: DOJ Office of Information Policy grants ACLU’s request for expedited processing but determines the request fell within “unusual circumstances” so it could not meet the statutory deadline

October 31, 2011: DOD denies ACLU’s request for expedited processing and also claimed “unusual circumstances”

November 2011, unknown date: Situation Room meeting at which Principals decide to pursue a “half monty” strategy of limited release of information on Awlaki

November 4, 2011: NYT appeals its denial

November 7, 2011: USSOCOM denies ACLU’s request for expedited processing and determined the request fell within “unusual circumstances”

November 14, 2011: OLC denies ACLU’s request under FOIA exemptions (b)(1), (b)(3), and (b)(5)

November 17, 2011: CIA denies ACLU’s FOIA “pursuant to FOIA exemptions (b)(1) and (b)(3)” and claims that the “fact of the existence or nonexistence of requested records is currently and properly classified”

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Oklahoma Attorney General Scott Pruitt Advocates Extending PATRIOT Act to Domestic Terrorists

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I watched last night’s Huckabee Presidential forum between thrilling plays in the Big 10.2 Championship game. Since each candidate appeared by him or herself, it lacked the entertaining in-fighting of other episodes of this reality show. But it was fascinating because some rising stars in the Republican Party–three far right Attorneys General, OK’s Scott Pruitt, VA’s Ken Cuccinelli, and FL’s Pam Bondi–served as co-moderators. As such, I think the forum provided some indication of where the leading edge of Republican crazy is.

Which is troubling, because in a question directed to Congressman Ron Paul, Pruitt endorsed applying the PATRIOT Act to purely domestic terrorists. [Update: bob johnson, who is from OK, says this wasn’t an endorsement. A pity, then, that Pruitt not only extended the discussion of PATRIOT to domestic grounds but also set up Bondi for more fearmongering.] After raising the specter of Tim McVeigh’s attack on the Murrah Federal Building, Pruitt asked,

Pruitt: What thoughtful alternative do you have to the PATRIOT Act to prevent acts of domestic terrorism in the future?

Paul provided the same kind of answer he has provided when he has gotten asked similar questions in the context of foreign terrorism in other debates, noting that the PATRIOT Act should have been called the repeal of the Fourth Amendment. To which Priutt doubled down:

So Congressman, you don’t believe that there needs to be a comprehensive law at the federal level equipping law enforcement to prevent domestic terrorism in this country?

Now, as I said, Paul gets asked a similar question at just about every debate. The authoritarian streak of today’s GOP party likes to call out Paul’s libertarianism so as to mock it as outside acceptable bounds of GOP ideology (usually just before everyone applauds torture).

Which is why I find it so troubling that Pruitt did so with regards to domestic terrorism.

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Bachmann Was Almost Right: The ACLU Is in Cahoots with the CIA

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As I have puzzled over the civil liberties and human rights communities’ stance on the NDAA Detainee Provisions, I’ve come to the unfortunate conclusion that Michelle Bachmann was not far off when she claimed, “Barack Obama … has essentially handed over our interrogation of terrorists to the ACLU. He has outsourced it to them.”

After all, in the guise of “fixing” some of what I agree are problems with the Detainee Provisions–the laws regarding detention and interrogation of detainees–the ACLU is telling its members to lobby for the Udall Amendment to the NDAA.

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

As a threshold matter, the ACLU’s  support of the Udall Amendment appears to put them on the same side of the debate as–among others–former CIA exec John Brennan and the former Director of the CIA, Leon Panetta. (Current CIA Director and outspoken detention authority while still at DOD, General David Petraeus, has been eerily quiet over the last several weeks.)

And I do agree with the ACLU that the Udall Amendment sets up an orderly review of detention power.

But, as I’ve noted, there’s one aspect of the Detainee Provisions that Udall doesn’t leave for orderly review: the scope of the language describing a “covered person.” Instead, Udall’s Amendment says covered people should be those “whose detention … is consistent with the laws of war and based on authority provided by” the 9/11 and Iraq AUMFs, as well as “any other statutory or constitutional authority.”

(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

(1) The Authorization for Use of Military Force (Public Law 107-40).

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

Udall pretty much unilaterally reasserts the application of the AUMFs (plural) and other vaguely defined legal bases to detention (and, because that’s how OLC has built up Executive Power over the last decade, a bunch of other things), in an effort to defeat SASC’s language that limits such detention authority to those tied directly to 9/11 or “who [were] part of or substantially supported al-Qaeda, the Taliban, or associated forces.” Udall’s Amendment may give SSCI and SJC another shot at this law, but it dictates that detention authority apply to a far broader group of people than the SASC language describes.

Hey, Mark. See that calendar? We’re not going to pass and sign this bill before December 1. We’re due to pull our troops out of Iraq by the end of that month. Are you telling me we need to include that language for less than 31 days? Or just to provide a bubble during which the Administration can do whatever it wants with Ali Mussa Daqduq, the alleged Hezbollah agent in US custody presenting so many legal dilemmas for us in Iraq? Or are you instead applying the AUMF for a war that is effectively over to grant the President authority to hold a much broader category of “terrorist” than the 9/11 AUMF authorized? Why, at this late date, are you including the Iraq AUMF?

Given your “based on authority provided” language, I assume it is the latter, meaning this attempt to do an orderly review of detention authority also mandates that that detention authority be applied as if the Iraq war were not ending.

And all that’s before you consider the “any other statutory or constitutional authority for use of military force,” which seems to say that in any circumstance in which Congress has authorized some use of military force, Udall’s Amendment also piggybacks detention authority … and whatever else (like assassination and wiretap authority) gets built off of detention authority in secret by the OLC.

The Udall Amendment, while giving the Senate Intelligence and Senate Judiciary Committees an opportunity to weigh in on what the President must and can do with detainees, goes far beyond the language in the SASC version of 1031, which reaffirmed the war on terrorists, but only on terrorists who have anything directly to do with, or are associated with, 9/11.

I may be badly misreading this. But as I understand it, the ACLU is basically lobbying to codify a vastly-expanded AUMF that will serve to legitimize many of the intelligence community’s most egregious civil liberties abuses, not just on detention, but on a range of other “war powers,” like wiretapping and assassination.

And while that may not be the same as outsourcing interrogation to the ACLU–as Bachmann described it–it does amount to using the ACLU to give sanction to a broad expansion of Executive war and surveillance powers the likes of which the CIA loves to exploit.

The Implications of DOJ’s FOIA “Lies”

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On Thursday, we learned it has been the practice of DOJ for nearly a quarter century to provide misleading information in response to FOIAs asking for certain kinds of information–broadly, ongoing investigations, informants, and foreign intelligence.

In this post I want to consider how the practice may be ripe for abuse.

Here’s the statutory language in question, Section 552(c) of FOIA:

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) [ed: this is the law enforcement exception] and – (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1) [ed: this is the exemption for information that has been properly classified according to Executive Order], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

Let’s take each of these in order.

Ongoing Legal Investigation

The first exclusion–for information that might tip the subject of an investigation into a potential crime to that investigation and therefore lead her to, for example, destroy evidence–makes a bit of sense.

But it seems ripe for abuse in several ways.

First, DOJ can only exclude these files if “the subject of the investigation or proceeding is not aware of its pendency.” But DOJ gets to decide whether the subject of an investigation really “knows” she is being investigated or not. As the Meese Guidelines governing this practice explain,

Obviously, where all investigative subjects already are aware of an investigation’s pendency, the “tip off” harm sought to be prevented through this record exclusion is not of concern. Accordingly, the language of this exclusion requires agencies to consider the level of awareness already possessed by all investigative subjects involved as they consider employing it. It is appropriate that agencies do so, as the statutory language provides, according to a good-faith, “reason to believe” standard, which closely comports with the “could reasonably be expected to” standard utilized both within this exclusion and in the amended form of Exemption 7(A).

This “reason to believe” standard for considering a subject’s pre-existing awareness should afford agencies all necessary latitude in making such determinations. As the exclusion is phrased, this requirement is satisfied so long as an agency determines that it affirmatively possesses “reason to believe” that such awareness does not in fact exist. Read more →

DOJ’s “New” FOIA Rule Just Attempt to Formalize Practice They’ve Been Following for Years

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As you no doubt have read, the government wants to issue a rule that says they can lie when people request FOIA information. The language reads,

(1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the FOIA office of that component must confer with the Office of Information Policy (OIP) to obtain approval to apply the exclusion.
(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.

In effect, this rule would allow the government to shield information relating to an ongoing investigation, an informant, or classified information “pertaining to foreign intelligence or counterintelligence, or international terrorism” from FOIA by basically lying about whether such information exists or not. It would permit the government, upon finding years of surveillance of a person, to then tell the person that no such surveillance information exists.

The government says it is issuing this rule, “to reflect developments in the case law.”

Together, the reference to case law and the timing of this rule suggest the government is, in fact, simply trying to pass a rule that formalizes the practice they’ve used for years.

The case law in question almost certainly pertains to Islamic Shura Council v FBI, a FOIA request initially submitted in May 2006. Ultimately, in 2009, Judge Cormac Carney ruled in that case that the government had properly withheld information that would have revealed the substance of the FBI’s investigation of the Muslim organization, though his ruling was just released this spring. When Carney issued that ruling, the fact that the government had been lying to FOIA requesters all along became public.

Here’s a post I wrote when Carney’s ruling became public earlier this year, and here’s a short timeline:

May 15, 2006: CAIR and other SoCal Muslim organizations submit a broadly worded FOIA for information on investigations or infiltration of the organizations

April 27, 2007: The government informs nine of the organizations that no information had been found

May 2007: The government informs CAIR and Hussam Ayloush it has a few pages of documents on each

June 2007: The government releases redacted versions of those documents

September 18, 2007: Organizations sue

March 21, 2008: In support of a motion for summary judgment, FBI’s David Harvey submits a declaration stating the government had done an adequate search, resulting in those few pages

April 20, 2009: Carney issued an order calling for an in camera review

May 1, 2009: Harvey submits a new declaration, stating that it had withheld responsive information from CAIR and Ayloush

May 14, 2009: Carney held an in camera hearing on whether the government can mislead the court

June 23, 2009: Carney issued a sealed ruling finding that for the most part the government had properly withheld the documents, but chewing out the government for lying in the first Harvey declaration; he said he would unseal it unless otherwise directed by the 9th Circuit

July 6, 2009: The 9th Circuit stays the unsealing

November 1, 2010: The case is argued

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

September 29, 2011: DOJ reopens rule for comment

October 19, 2011: Second end of comment period for rule

So look what the timing makes clear: The government knew Carney wanted to reveal that the government lied to him–but also that it routinely lied to FOIA requesters–in June 2009. But they only issued a rule trying to formalize their practice of lying to FOIA requesters in the days before the 9th ruled, 21 months later. Rather conveniently, the timing of the rule meant the comment period would expire before it became public that the government has been going beyond Glomar and instead lying to FOIA requesters.

No wonder the ACLU and others objected.

But that doesn’t change what the facts in this case seem to suggest: that the government has been operating under Meese’s memo for years–certainly at least as far back as 2007 when the government first lied to CAIR and Ayloush to hide the big stash of documents pertaining to them.

Mind you, the ruling upholds the principle that the government can’t lie to judges to hide their lies to FOIA requesters–a principle that (as Carney pointed out) even Meese didn’t propose. Here’s that hippie Meese describing judicial review:

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. In either case, the government will of course urge the court to issue a public decision which does not indicate whether it is or is not an actual exclusion situation. Such a public decision, not unlike an administrative appeal determination of an exclusion-related request for review, should specify only that a full review of the claim was undertaken and that, if an exclusion in fact was employed, it was, and continues to remain, amply justified.

And here’s the hippies on the 9th Circuit (Schroeder, Tallman, and Smith) reaffirming the principle of judicial review in FOIA.

When the government does not provide the court with accurate or complete information, the court’s function in overseeing FOIA actions and monitoring litigation is compromised. The government may withhold relevant information from plaintiffs to protect “the secret nature of the information,” id. at 826, but it must disclose to the court all relevant and responsive information in order for the court to evaluate whether the withholding was appropriate.

[snip]Therefore, if the government believes that submitting a detailed affidavit would compromise the information it is seeking to protect, then it must seek an in camera review. It cannot, however, represent to the district court that it has produced all responsive documents when in fact it has not.
We thus agree with the district court that the FOIA does not permit the government to withhold information from the court. Indeed, engaging in such omissions is antithetical to FOIA’s structure which presumes district court oversight.

And just for good measure, here’s that hippie Carney scolding the government for trying to pull something that even Ed Meese didn’t sanction.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

I actually suspect that the 9th Circuit’s clear reaffirmation of judicial review for FOIA elicited the rule change. After all, even the Obama Administration argued the claim that they could just lie to judges to protect exclusion issues. But if they’re going to get judges to go along with their secret exclusions, folks outside of DOJ will need to know about the practice.

Of course to get there–assuming the rule is enacted–we will have to appeal every single FOIA decision, assuming always that the government is lying.

Which is a great way to run a democracy–to force citizens to always assume the government is lying.