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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.

That Beacon of Hope We’ve Created in Iraq

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As we discuss whether to abandon rule of law in Afghanistan under General Petraeus, we’d do well to consider how the war Petraeus “won” in Iraq turned out:

On a dull December day in 2009, Rabiha al Qassab, a 63-year-old Iraqi refugee living in a quiet residential area of north London, received a telephone call that marked the beginning of a new nightmare for a family already torn apart by Iraq’s political upheavals.

Her 68-year-old husband, Ramze Shihab Ahmed, had been arrested while on a visit to Iraq, and no-one knew where he was being held or what, if anything, he had been charged with.

Nine months later, Ramze is still languishing in legal limbo in a Baghdad prison. His story lays bare the horrific abuses and lack of legal process that characterise post-Saddam Iraq’s detention system, which human rights groups say has scarcely improved since the darkest days of the dictator’s rule.

[snip]

“They beat him. They put a plastic bag on his head until he lost consciousness, and then they woke him with electric shocks. They told him that if he didn’t confess, they would make his son rape him. They put a wooden stick into his anus,” she says. “They have abused him in every way.”

After days of torture, Ramze signed a confession admitting to being a member of al- Qaeda in Iraq, a claim Rabiha says is absurd. “He would see the bombings on television and say ‘what sort of Islam is this?'” she says. “He was very sorry for all the people who died.”

Human rights experts say that Ramze’s story is far from unique. In a new report on mistreatment in the Iraqi prison system, entitled New Order, Same Abuses, Amnesty International estimates that around 30,000 people are currently being held without charge or trial in Iraq. Many are being tortured with impunity, the group says.

I’m sure our decision to put aside rule of law in favor of “the principal goal” in Iraq has nothing to do with Iraq’s embrace of the same kind of torture that we used–after the WMD rationale was exposed as a lie–to justify our invasion of Iraq.

Here’s the Amnesty report.

If we’re going to insist on continuing this imperial adventure we’re on, we’re going to have to come up with a better rationale than “democracy” or “rule of law” or “freedom from tyranny.” Because all those excuses appear as bogus, at this point, as the WMD one.

Dick Cheney Out on a Limb Fourth Branch

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We’ve been laughing about this in threads, but I wanted to share the joke(s). Greg Sargent got the letter from the CIA telling the Archives that Dick Cheney can’t have his propaganda.

As you are aware, a request for Mandatory Declassification Review is governed by Executive Order 12958, as amended, which was signed and executed by the President on March 25, 2003. Under section 3.5.(a)(3) of that Executive Order, a document is excluded from Mandatory Declassification Review if that document contains information that is the subject of pending litigation. This provision ensures that the Mandatory Declassification Review process is not used to disrupt simultaneous litigation proceedings that are already pending. In researching the information in question, we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency). Therefore, the requested document, which contains this information, is excluded from Mandatory Declassification Review.

There are two reasons I’ve been laughing my ass off for the last few hours.

First, those FOIAs? The CIA says Dick can’t have his propaganda until two liberal entities–some experts in bioethics wanting more details on the use of doctors in torture, and Amnesty International and Center for Constitutional Rights looking for more information on extraordinary rendition and ghost detainees–resolve their demand for these documents. But guess what? Cheney’s propaganda documents aren’t the only things that would be responsive under FOIA! So would the IG report, particularly the parts that describe how the CIA’s own IG didn’t think torture was all that effective and those that discuss the use of psychologist-contractors to conduct torture. So for Dick to get his documents, he may have to wait for these do-gooder torture opponents get a whole load of proof of just how ineffective and unethical Cheney’s torture program was.

I just can’t wait to see Dick Cheney asking the Center for Constitutional Rights nicely to give him his little propaganda documents. 

And what’s better? That EO the CIA cites, saying it cannot turn over these documents? EO 12958, as amended? That amendment is EO 13292–an amendment Dick had Bush sign on March 25, 2003, just at the beginning of the Iraq War. It’s a special amendment in Dick’s little bureaucratic evil, because it’s the basis that Dick used to claim he could insta-declassify the identity of a CIA spy and have it leaked to Judy Miller! Read more →