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The Torture Apologists Raise Brennan’s Torture-Derived Scary Memos

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Some time in mid-2004, 8 high ranking National Security officials gave then presiding FISA Court Judge Colleen Kollar-Kotelly a briefing. Their goal was to convince her the then halted and now-discontinued Internet dragnet program was so important, and the terrorist threat against the US so great, she should write a shoddy legal opinion authorizing NSA to restart the program under the authority of the FISA Pen Register statute.

As part of the briefing, they replicated a process they had used for Bush’s illegal wiretap program: to have CIA’s analytical people write what they called a “scary memo” explaining why al Qaeda was so dangerous we had to continue that dragnet.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to’ undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. [my emphasis]

As head of the Terrorist Threat Integration Center (and later as head of the nascent National Counterterrorism Center), John Brennan oversaw that “scary memo.”

Last year, John Brennan admitted that he used information derived from the torture program (he calls it the detention and interrogation  program) for those “scary memos.”

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation. [my emphasis]

We can imagine the kind of things Brennan might have used in his “scary memos” and that briefing to Kollar-Kotelly, on which the entire FISC-authorized dragnet .

Hassan Ghul — whom CIA tortured even after he provided critical information about Osama bin Laden’s courier — was already in custody, and given uncertainty about when his torture started, may have provided such information.

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The Phone Metadata Program Metadata

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ODNI released a bunch of the remaining phone dragnet primary orders (and amendments) here. I will have more to say about this later. Of particular note, though, they seem to be withholding the BR 09-15 primary order, which was right in the middle of PATRIOT reauthorization, when NSA kept disseminating results in violation of Reggie Walton’s orders.

  1. Howard, Malcolm BR 06-05 (5/24/06)
  2. Howard, Malcolm BR 06-08 (8/18/06)
  3. Scullin, Frederick, BR 06-12 (11/15/06)
  4. Broomfield, Robert, BR 07-04 (2/02/07)
  5. Gorton, Nathaniel, BR 07-10 (5/03/07)
  6. Gorton, Nathaniel, BR 07-14 (7/23/07)
  7. Vinson, Roger, BR 07-16 (10/18/07)
  8. Howard, Malcolm, BR 08-01 (1/?/08)
  9. Kollar-Kotelly, Colleen, BR 08-04 (4/3/08)
  10. Zagel, James, BR 08-07 (6/26/08)
  11. Zagel, James, BR 08-08 (8/19/08) [or 9/19/08]
  12. Walton, Reggie, BR 08-13 (12/12/08)
  13. Walton, Reggie, BR 09-01 (3/5/09)
  14. Walton, Reggie, BR 09-06 (5/29/09)
  15. Walton, Reggie (?) BR 09-09 (7/8/09) [see also]
  16. Walton, Reggie, BR 09-13 (9/3/09)
  17. Walton, Reggie (?) BR 09-15 (10/30/09) [See also]
  18. Walton, Reggie (?) BR 09-19 [see also]
  19. Walton, Reggie, BR 10-10 (2/26/10)
  20. Walton, Reggie, BR 10-17 (5/14/10)
  21. Walton, Reggie, BR 10-49 (8/04/10)
  22. Walton, Reggie, BR 10-70 (10/29/10)
  23. Bates, John, BR, 11-07 (1/20/11)
  24. Feldman, Martin, BR 11-57 (4/13/11)
  25. Bates, John, BR 11-107 (6/22/11)
  26. ~9/20/11?
  27. BR-11-191 [see also]
  28. ~1/29/12?
  29. ~4/29/12?
  30. ~7/28/12?
  31. ~10/26/12?
  32. ~1/25/13?
  33. Vinson, Roger, BR 13-80, (4/25/13)
  34. Eagan, Claire, BR 13-109, (7/18/13)
  35. McLaughlin, Mary, BR 13-158 (10/11/13)
  36. 1/3/14

1/19: Updated to add the 7/9/09 order and BR 09-19.

1/20: There is one more missing primary order. In an NSA declaration dated November 12, SID Director Theresa Shea said there had been 34 approvals. As shown above, the McLaughlin order is the 33rd of identified orders.

1/26: I think I’ve corrected all the date errors I originally hate (the date stamp is not all that accurate). For the 2011-2013 dates, I’ve worked backwards of the 4/25/13 order.

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Crimes against Secrecy, Crimes against the Constitution

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I’m not all that interested in the debate about offering Edward Snowden some kind of amnesty, as I think he could never accept the terms being offered, it arises in part out of NSA’s PR effort, and distracts from the ongoing revelations.

But I am interested in this. Amy Davidson wrote a column refuting Fred Kaplan’s assertion that because Snowden “signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information,” comparisons with Jimmy Carter’s pardon for draft dodgers are inapt. She notes (as a number of people have already) that the only “oath” that Snowden made was to the Constitution.

To begin with, did Snowden sign “an oath…not to disclose classified information”? He says that he did not, and that does not appear to have been contradicted. Snowden told the Washington Post’s Barton Gellman that the document he signed, as what Kaplan calls “a condition of his employment,” was Standard Form 312, a contract in which the signatory says he will “accept” the terms, rather than swearing to them. By signing it, Snowden agreed that he was aware that there were federal laws against disclosing classified information. But the penalties for violating agreement alone are civil: for example, the government can go after any book royalties he might get for publishing secrets.

Snowden did take an oath—the Oath of Office, or appointment affidavit, given to all federal employees:

I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Now, some would argue—and it would have to be an argument, not an elision—that he violated this oath in revealing what he did; Snowden told Gellman that the revelations were how he kept it—protecting the Constitution from the officials at the N.S.A., which was assaulting it. Either way this is just not an oath, on the face of it, about disclosing classified information. [my emphasis]

Former Obama DOD official Phil Carter then attempted to refute Davidson on Twitter. He did so by pointing to the “solemnity” of the forms Snowden did sign, and then noting such “promises are far more legally enforceable than an ‘oath’ of office.”

Screen shot 2014-01-06 at 8.16.52 AM

I don’t dispute Carter’s point that nondisclosure agreements are easier to enforce legally than an oath to the Constitution. And, as noted above, in her original piece Davidson admitted that Snowden had acknowledged there were laws against leaking classified information. No one is arguing Snowden didn’t break any laws (though if our whistleblower laws covered contractors, there’d be a debate about whether that excuses Snowden’s leaks).

Nevertheless, Carter’s comment gets to the crux of the point (and betrays how thoroughly DC insiders have internalized it).

We have an ever-growing side of our government covered by a blanket of secrecy. Much of what that secrecy serves to cover up involves abuse or crime. Much of it involves practices that gut the core precepts of the Constitution (and separation of powers are as much at risk as the Bill of Rights).

Yet we not only have evolved a legal system (by reinforcing the clearance system, expanding the Espionage Act, and gutting most means to challenge Constitutional violations) that treats crimes against secrecy with much greater seriousness than crimes against the Constitution, but DC folks (even lawyers, like Carter) simply point to it as the way things are, not a fundamental threat to our country’s government.

That plight — where our legal system guards this country’s “secrets” more greedily than it guards the Constitution — is the entire point underlying calls for amnesty for Snowden. He has pointed to a system that not only poses a grave threat to the Bill of Rights, but just as surely, to separation of powers and our claim to be a democracy.

Moreover, those who (like Carter) point to our failed branches of government as better arbiters of the Constitution than Snowden ignore many of the details in the public record. Just as one example, David Kris has suggested that the entire reason Colleen Kollar-Kotelly wrote a badly flawed opinion authorizing the Internet dragnet was because George Bush had created a constitutional problem by ignoring Congress’ laws and the courts.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch. [my emphasis]

And while Kris argued Congress’ subsequent approval of the dragnets cures this original sin, the record in fact shows it did so only under flawed conditions of partial knowledge. Of course, these attempts to paper over a constitutional problem only succeed so long as they remain shrouded in secrecy.

That the first response of many is to resort to legalistic attempts to prioritize the underlying secrecy over the Constitution raises questions about what they believe they are protecting. The next torture scandal? Covert ops that might serve the interest of certain autocratic allies but actually make Americans less secure? The financial hemorrhage that is our military industrial complex? The sheer ignorance our bloated intelligence community has about subjects of great importance? Petty turf wars? Past failures of the national security system we’re encouraged to trust implicitly?

At some point, we need to attend to protecting our Constitution again. If Article I and III have gotten so scared of their own impotence (or so compromised) that they can no longer do so, then by all means lets make that clear by revealing more of the problems.

But we need to stop chanting that our Constitution is not a suicide pact and instead insist that our secrecy oaths non-disclosure agreements should not be suicide bombs.

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By “Application” the Administration Didn’t Mean “Memorandum of Law”

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This is a very minor point.

But, perhaps to rebut my observation that the government withheld significant constructions of law from the oversight committees until after the PATRIOT Act was reauthorized in 2010, ODNI released these this July 22, 2009 document, approving the unsealing of the original application for the phone dragnet so it could be shared with the Judiciary and Intelligence Committees as mandated by the FISA Amendments Act over a year earlier.

That makes it clear the oversight committees did have the application, at least, before they started discussions to reauthorize PATRIOT.

But it also shows several other things.

It shows how misleading the White Paper was when it implied the oversight committees had everything by December 2008.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees. [my emphasis]

It seems that reference to “application” in the White Paper referred only to the formal application, absent the underlying legal memorandum revealing just how radical this request was, which the Executive Branch withheld for another 7 months (even as the program was showing serial violations).

It also shows that the government took over a year after FAA required this sharing before it actually shared the document.

And it shows that, while we don’t know what the government withheld for over another year, the government was still withholding substantive information from Congress until after PATRIOT was reauthorized in February 2010.

Unlike some of the documents released by the government, the original Colleen Kollar-Kotelly opinion doesn’t reveal when it got released to Congress. I wonder when the Executive decided to share that?

Update: I may have spoken too soon. FISC unsealed this, but I don’t see the submission recorded on the Vaughn indices. Will update soon.

Update: Here’s what the ACLU Vaughn Index (there are differences with the EFF Vaughn Index, but not on this point) shows as far as Congressional submissions of pre-FAA material.

  • October 3, 2008, 31 pages of post FAA matters, all apparently on Section 215
  • October 3, 2008, 31 pages of post FAA matters, all apparently on Section 215 (may be duplicate entry — see entries 13 and 82)
  • December 1, 2008, at least 1084 pages of pre FAA matters, 378 of which pertain to Section 215
  • August 16, 2010, 236 pages of Section 215 matter plus more on other topics, pre FAA matters
  • February 4, 2011, 39 pages, all apparently on Section 215, unclear whether this is pre or post FAA materials

In other words, if the Vaughn Index is accurate, FISC unsealed this opinion on July 22, 2009, but the Executive Branch didn’t provide it to the oversight committees until August 16, 2010.

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The Five Year Parade of Internet Dragnet Violations

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Monday’s document release provided mounting evidence that when the hospital confrontation “heroes” moved the Internet dragnet they had deemed to be illegal under the auspices of the FISA Court, neither they, nor Judge Colleen Kollar-Kotelly believed it was legally sound. But they traded those truly crummy legal claims to bring the program under court oversight. Since then, boosters of the scheme have claimed the oversight serves to eliminate violations quickly.

We already knew that’s not true.

Still, Monday’s release — particularly this John Bates opinion written around July 2010 — makes that even more clear. After Kollar-Kotelly sacrificed judicial wisdom for court oversight on July 14, 2004, the government continued breaking the court’s rules for five years, until Reggie Walton shut the program down, sometime in fall 2009.

First, let’s lay out the dates. I’ve done a rough timeline below, based on the known start-date (July 14, 2004) and the rough end point with John Bates’ opinion (around July 2010). The bulk of the other dates impose the timeline laid out in the Bates opinion on a few known dates taken from the phone dragnet production (plus, the geniuses at ODNI not only left the date of the June 22 Internet dragnet order in its URL (CLEANED101.%20Order%20and%20Supplemental%20Order%20%286-22-09%29-sealed.pdf), but it’s the same document as the June 22 phone dragnet order, which has different redactions but most dates intact — see the three bolded entries below).

As you’ll see, there were two known violations in the Internet dragnet before the before the discoveries of the problems started in earnest in 2009. That’s not that big a deal — there was at least one phone violation before 2009 too, except in the case of the Internet dragnet, NSA overcollected from the very start.

The examination of the Internet dragnet started in response to the first phone dragnet disclosures in January 2009 (with the change in Administration, it should be remembered). Reggie Walton told NSA to see if the Internet dragnet had the same compliance problems as the phone dragnet did.

From that point until June 2009, the discoveries seemed to work in parallel (the NSA was working on End-to-End reports for both programs at the same time, and they share some common databases). But with the discovery that both dragnet programs were sharing information freely with other agencies, it became clear the violations were much worse on the Internet dragnet side, with reports going out with US person information that did not even remotely comply with minimization requirements.

Then sometime after that — and after Walton issued what would be the last Internet dragnet order for a year (that was sometime after June 22, 2009) — NSA discovered they had been receiving “metadata” far outside the permitted scope, which surely included content. Note this may have happened around the same time as NSA reported that one phone provider had overproduced (including international data in addition to domestic, I think) on July 9, 2009, so I wonder if they were only then reviewing returned data on receipt.

In any case, it was around that time that NSA “discovered” the Internet metadata program had never ever been in compliance. From Bates:

Notwithstanding this and many similar prior representations [made on the summer 2009 reauthorization] there in fact had been systemic overcollection since [redacted]. On [redacted] the government provided written notice of yet another form of substantial non-compliance discovered by NSA OGC on [redacted] this time involving the acquisition of information beyond the [redacted] authorized categories.

[snip]

This overcollection, which had occurred continuously since the initial authorization in [redacted] included the acquisition of [long redaction]. [my emphasis]

Never.

If my math is correct, the application the NSA withdrew was submitted not long after September 20. There are briefings for the Intelligence Committees that likely alerted them to the scale of the Internet dragnet problems around that time. But as of October 5, some of the most assertive House Judiciary members seem to have had no idea about the problems with the Internet dragnet. If they found out about it with the notice to Congress on December 17, 2009, it explains why the PATRIOT Act reauthorization process stalled.

There’s one more very important thing in this timeline. You’ll see below that almost at exactly the same time as NSA “realized” it had never complied with program requirements, it started a pilot project that would be rolled out on January 3, 2011, analyzing metadata with no special protections for US persons or limit for use only on counterterrorism.

Specifically, these new procedures permit contact chaining, and other analysis, from and through any selector, irrespective of nationality or location, in order to follow or discover valid foreign intelligence targets. (Formerly analysts were required to determine whether or not selectors were associated with US communicants.)

[snip]

In the second place it enables large-scale graph analysis on very large sets of communications metadata vwithout having to check foreignness of every node or address in the graph. Analysts in S2 have used this to great benefit over the past year and a half under a pilot program. [emphasis original]

In other words, at the moment they were coming clean with the FISC that they had never ever complied with the PR/TT orders, they were beginning the pilot project that would move metadata collection overseas, under EO 12333. (This document goes back to this NYT story on social network analysis.)

So much for the notion that putting all this under court oversight would accomplish a damn thing. All it did was degrade the law and provide NSA cover until they developed the technology to do all this overseas.

Update, 11/22: More dates added to timeline.

Update, 11/26: More dates added to timeline. Read more →

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Freedom of Association: From Six Degrees of Kevin Bacon to Three Degrees of Terry Stop

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One thing the July 24, 2004 Colleen Kollar-Kotelly opinion and the May 23, 2006 phone dragnet application reveal is that the government and the court barely considered the First Amendment Freedom of Association implications of the dragnets.

The Kollar-Kotelly opinion reveals the judge sent a letter asking the government about “First Amendment issues.” (3) Way back on 57, she begins to consider First Amendment issues, but situates the in the querying of data, not the creation of a dragnet showing all relationships in the US.

In this case, the initial acquisition of information is not directed at facilities used by particular individuals of investigative interest, but meta data concerning the communications of such individuals’ [redacted]. Here, the legislative purpose is best effectuated at the querying state, since it will be at a point that an analyst queries the archived data that information concerning particular individuals will first be compiled and reviewed. Accordingly, the Court orders that NSA apply the following modification of its proposed criterion for querying the archived data: [redacted] will qualify as a seed [redacted] only if NSA concludes, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion that a particularly known [redacted] is associated with [redacted] provided, however, that an [redacted] believed to be used by a U.S. person shall not be regarded as associated with [redacted] solely on the basis of activities that are protected by the First Amendment to the Constitution. For example, an e-mail account used by a U.S. person could not be a seed account if the only information thought to support the belief that the account is associated with [redacted] is that, in sermons or in postings on a web site, the U.S. person espoused jihadist rhetoric that fell short of “advocacy … directed to inciting or producing imminent lawless action and … likely to incite or produce such action.” Brandnberg v. Ohio

By focusing on queries rather than collection, Kollar-Kotelly completely sidesteps the grave implications for forming databases of all the relationships in the US.

Then, 10 pages later, Kollar-Kotelly examines the First Amendment issues directly. She cites Reporters Committee for Freedom of the Press v. AT&T to lay out that in criminal investigations the government can get reporters’ toll records. Predictably, she says that since this application is “in furtherance of the compelling national interest of identifying and tracking [redacted terrorist reference], it makes it an easier case. Then, finally, she cites Paton v. La Prade to distinguish this from an much less intrusive practice, mail covers.

The court in Paton v. La Prade held that a mail cover on a dissident political organization violated the First Amendment because it was authorized under a regulation that was overbroad in its use of the undefined term “national security.” In contrast, this pen register/trap and trace surveillance does not target a political group and is authorized pursuant to statute on the grounds of relevance to an investigation to protect against “international terrorism,” a term defined at 50 U.S.C. § 1801(c). This definition has been upheld against a claim of First Amendment overbreadth. [citations omitted]

Of course, a mail cover is not automated and only affects the targeted party. This practice, by contrast, affects the targeted party (the selector) and anyone three hops out from him. Thus, even if those people are, in fact, a dissident organization (perhaps a conservative mosque), they in effect become criminalized by the association to someone only suspected — using the Terry Stop standard (the same used with stop-and-frisk) — of ties (but not even necessarily organizational ties) to terrorism.

Here’s how it looks in translation, in the 2006 application:

It bears emphasis that, given the types of analysis the NSA will perform, no information about a telephone number will ever be accessed or presented in an intelligible form to any person unless either (i) that telephone number has been in direct contact with a reasonably suspected terrorist-associated number or is linked to such a number through one or two intermediaries. (21)

So: queries require only a Terry Stop standard, and from that, mapping out everyone who is three degrees of association — whose very association with the person should be protected by the First Amendment — is fair game too.

Imagine if Ray Kelly had the authority to conduct an intrusive investigation into every single New Yorker who was three degrees of separation away from someone who had ever been stop-and-frisked. That’s what we’re talking about, only it happens in automated, secret fashion.

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Colleen Kollar-Kotelly Ate the Serpent’s Fruit of Judicial “Oversight” in Lieu of Law

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Sometime next week, I will have a post on what known documents the government chose not to release in yesterday’s dump — a significant chunk, for example, almost certainly show how the dragnet programs are tied inextricably to the content programs.

But for now, we’re getting increased clarity on the phone and Internet dragnet program.

One thing that seems clear is that there is no opinion authorizing the phone dragnet, as I suggested two months ago.

What passes as the government’s application for the phone dragnet — it is described as “Production to Congress of a May 23, 2006 Government Memorandum of Law,” but for a number of reasons, I have my doubts we’ve gotten even precisely that, which I’ll lay out at a future time — is dated May 23, 2006, the day before Malcom Howard approved the application. That doesn’t leave time for Howard to have written a fulsome opinion on the practice (and indeed, the timing makes me wonder whether this was approved because of urgent legal deadlines facing the telecoms). [Update: And when John Bates cites the “precedent” in his June-July 2010 opinion (75) he doesn’t cite an opinion.]

And the application makes it clear it relies on Kollar-Kotelly’s opinion as its legal justification. The first instance of doing so, tellingly, makes it clear FISC approval is designed primarily to give legal sanction for the program, not to assess whether the program actually is legal.

The Application is completely consistent with this Court’s ground breaking and innovative decision [redacted] in [redacted]. In that case, the Court authorized the installation and use of pen registers and trap and trace devices to collect bulk e-mail metadata [redacted]. The Court found that all of “the information likely to be obtained” from such collection is “relevant to an ongoing investigation to protect against international terrorism.” 50 U.S.C. § 1842(c)(2); [redacted] 25-54. The Court explained that “the bulk collection of meta data–i.e., the collection of both a huge volume and high percentage of unrelated communications–is necessary to identify the much smaller number of [redacted] communications.” Id. at 49. Moreover, as was the case in [redacted], this Application promotes both the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.

Let’s pause and reflect on this point for a moment.

We can now say with some certainty that a great many dragnet applications stem from the Kollar-Kotelly opinion. That’s because we have almost certainly identified the two opinions named in Claire Eagan’s opinion from earlier this year.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”

An earlier reference in Eagan quotes the Kollar-Kotelly opinion directly (and the page number lines up), and while I have not found the citation from this passage in the Bates opinion also released yesterday yet (I think it may appear in the redactions on page 76), that opinion discusses relevance at length and was clearly written between 2009 and 2011. [Update: the quote appears to be a rough transcription of Bates’ cherry picked quote from Kollar-Kotelly that appears on page 9. Update 2: The quote comes from page 73, which is Bates’ own transcription of his citation of K-K, but Eagan missed the word “analytic” before tools.]

[Update] Another thing suggests the Bates opinion dates to 2010. The language in the December 2009 notice to Congress suggests ongoing problems, and includes the Internet metadata problems, whereas the February 2011 notice includes far more redacted discussion (yet still treats an active Internet metadata program.

In addition, we know from the geolocation materials that the government didn’t get an opinion dedicated to that application before they started.

DOJ advised in February 2010 that obtaining the data for the described testing purposes was permissible based upon the current language of the Court’s BR FISA order requiring the production of’ all ca11 detail records.’ It is our understanding that DOJ also orally advised the FISC, via its staff, that we had obtained a limited set of test data sampling of cellular mobility data (cell site location information) pursuant to the Court-authorized program and that we were exploring the possibility of acquiring such mobility data under the BR FISA program in the near future based upon the authority currently granted by the Court.

There are 2004, 2006, 2008, 2010, and 2013 opinions that relate to Section 215 (and, I suspect, other activities as well; updated with typo fixed). But at the very least, Kollar-Kotelly’s opinion authorized gathering substantially all the phone and (by 2010) Internet metadata in the country, as well as (starting in 2010) some subset of geolocation data).

Kollar-Kotelly, then, is the primary analysis the government has always relied on to construct maps charting the relationships of every American.

Which is why I find it so troubling that the application here is unashamed that the point of the opinion is not to assess the legality of a practice, but instead to “provid[e] judicial oversight to safeguard American freedoms.” (Side note: these opinions argue these practices are “necessary” to protect American lives, but the phone dragnet has never once done so, as far as we know, and the government has since purportedly canceled the Internet dragnet program because it was unnecessary, though that is almost certainly a lie.)

Guaranteeing the government doesn’t violate the Constitution was supposed to safeguard American freedoms. But with the Kollar-Kotelly opinion and all that follows from it, impotent oversight has came to substitute for defending the Constitution.

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The “Heroes” of the Hospital Confrontation Brief the FISC

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I’m going to have several posts on the documents released yesterday, starting with the Internet dragnet opinion and the phone dragnet application.

But to give those two background, I want to look at a passage in the Internet dragnet opinion, in which Colleen Kollar-Kotelly describes a fascinating briefing that she received in advance of authoring what Orin Kerr describes as a “quite strange” opinion.

After describing some declarations she received (including one from a person whose title remains redacted) and some questions she posed, she describes this briefing.

The Court also relies on information and arguments presented in a briefing to the Court on [redacted] which addressed the current and near-term threats posed by [redacted reference to Al Qaeda and others], investigations conducted by the Federal Bureau of investigation (FBI) to counter those threats, the proposed collection activities of the NSA (now described in the instant application), the expected analytical value of information so collected in efforts to identify and track operatives [redacted] and the legal bases for conducting these collection activities under FISA’s pen register/trap and trace provisions. 4

4 This briefing was attended by (among others) the Attorney General; [redacted] the DIRNSA; the Director of the FBI; the Counsel to the President; the Assistant Attorney General for the Office of Legal Counsel; the Director of the Terrorist Threat Integration Center (TTIC); and Counsel for Intelligence Policy.

That is, right at the beginning of her opinion, Kollar-Kotelly tells us that she had a briefing with:

  • AG John Ashcroft
  • [redacted]
  • DIRNSA Michael Hayden
  • FBI Director Robert Mueller
  • Counsel to the President Alberto Gonzales
  • AAG for OLC Jack Goldsmith
  • TTIC Director John Brennan
  • Counsel for OIPR James Baker

On page 30, Kollar-Kotelly seems to refer to the same redacted person again, which in the context of the reference to CIA v. Sims in that footnote, seems to suggest this is a reference to CIA Director George Tenet, which suggests the redacted author of the brief she relied on was authored by Tenet. (I leave open the more tantalizing possibility that it’s someone like Dick Cheney, but highly doubt it.)

So before she approved the use of FISA’s Pen Register to collect much of the Internet metadata in the US, she had a meeting with at least one of the villains — Alberto Gonzales — of the hospital confrontation at which DOJ refused to reauthorize the Internet metadata program that was part of the President’s illegal wiretap program, and at least three of its “heroes:” Ashcroft, Mueller, and Goldsmith.

Interestingly, this meeting does not appear — at least not described as such — in the Draft NSA IG Report description of the transition to a FISC order.

After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefmg on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of 2004 to discuss the on-going efforts.

Was this “briefing” one of the Saturday meetings Hayden had with FISC’s Presiding Judge?

Remember, David Kris described the genesis of the bulk collection programs this way, in a paper emphasizing the role of the Internet dragnet.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.

[snip]

The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. [my emphasis]

The Internet dragnet was illegal. At least 3 of the people who conveyed the importance of authorizing this program had said so — in very dramatic fashion — less than four months before she would do so.

And yet she wrote a memo saying it was legal.

Update, 8/12/14: This application confirms that George Tenet was the redacted declaration submitter.

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The FISC Opinion Dance

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Andrea Peterson calls attention to this cryptic Ron Wyden quote in WaPo’s story on extant FISA Court opinions on bulk collection.

“The original legal interpretation that said that the Patriot Act could be used to collect Americans’ records in bulk should never have been kept secret and should be declassified and released,” Sen. Ron Wyden (D-Ore) said in a statement to The Washington Post. “This collection has been ongoing for years and the public should be able to compare the legal interpretation under which it was originally authorized with more recent documents.”

Before I speculate about what Wyden might be suggesting, let’s review what opinions the article says exist.

There’s the original Colleen Kollar-Kotelly opinion.

In the recent stream of disclosures about National Security Agency surveillance programs, one document, sources say, has been conspicuously absent: the original — and still classified — judicial interpretation that held that the bulk collection of Americans’ data was lawful.

That document, written by Colleen Kollar-Kotelly, then chief judge of the Foreign Intelligence Surveillance Court (FISC), provided the legal foundation for the NSA amassing a database of all Americans’ phone records, say current and former officials who have read it.

[snip]

Kollar-Kotelly’s interpretation served as the legal basis for a court authorization in May 2006 that allowed the NSA to gather on a daily basis the phone records of tens of millions of Americans, sources say. Her analysis, more than 80 pages long, was “painstakingly thorough,” said one person who read it. The date of the analysis has not been disclosed.

 

There’s a 2006 one pertaining to Section 215 not written by Kollar-Kotelly.

The Justice Department also is reviewing a 2006 court opinion related to the Section 215 provision to determine whether it can be released, said Alex Abdo, an ACLU staff lawyer. (A senior department official told The Post that no 2006 Kollar-Kotelly opinion is based on that provision.)

There are two more on Section 215 the government has disclosed the existence of to ACLU.

Government lawyers have told the ACLU that they are withholding at least two significant FISC opinions — one from 2008 and one from 2010 — relating to the Patriot Act’s Section 215, or “business records” provision.

Now compare how these map up with the two opinions referenced by Claire Eagan in her recent opinion.

This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain.  Read more →

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Espionage: Now, with No Damage Envisioned

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A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldn’t even harm the US.

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.  Her opinion was a departure from a 30 year old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary.  (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane’s Defence Weekly. He was later pardoned by President Clinton.)

“The Court declines to adopt the Morison court’s construction of information relating to the ‘national defense’ insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States,” Judge Kollar-Kotelly wrote in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person.  But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

Imagine how this ruling could empower prosecutors in the AP UndieBomb 2.0 investigation, in which the AP’s story reported only that the US had thwarted an UndieBomb plot. They didn’t report it until after the White House said they had cleared up a sensitive issue relating to the plot (which in practice ended up being the drone death of Fahd al-Quso).

This would make it easier for the government to prosecute AP’s sources for leaking information that even the government had suggested, to the AP, wouldn’t harm US interests.

And of course, all that builds on top of the now routine treatment of leaks to the press as Espionage, something fairly unusual before the Obama Administration.

Frightening.

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