Posts

Least Surprising Appeal Ever: Back Door Search Edition

/in /by

In thoroughly unsurprising news, DOJ has informed the 7th Circuit it will appeal Judge Sharon Coleman’s decision giving attorneys for Adel Daoud an opportunity to review the FISA materials used to identify him.

While we don’t know what exotic mix of FISA claims the Executive used to identify Daoud and decide to sic a series of undercover operatives on him, we do know Dianne Feinstein raised his case during the FISA Amendments Act debate in 2012; the context suggests NSA may have found Daoud using a back door search.

While DOJ will say they’re objecting to Coleman’s decision because no defense attorney has ever reviewed a FISA warrant before so why start now, the other underlying message they send with this appeal is that they lack confidence that their counterterrorism tools would stand up to adversarial review.

The next time someone says this is all legal, you might remind them that DOJ refuses to test that claim in the traditional venue for doing so, an Article III setting.

The Lapses in Dragnet Notice to Congress

/7 Comments/in , /by

I’m at a great conference on national security and civil liberties. Unfortunately, speakers have repeatedly claimed that NSA fully informs Congress on its programs.

Even setting aside Dianne Feinstein’s admission that the intelligence committees exercise less oversight over programs conducted under EO 12333, there are a number of public documents that show the Executive failing to fully inform Congress:

April 27, 2005: Alberto Gonzales and Robert Mueller brief SSCI on PATRIOT Authorities in advance of reauthorization. They make no mention of the use of PR/TT to gather Internet metadata, much less the violations of Colleen Kollar-Kotelly limits on the kind of data collected during the first period of its use.

October 21, 2009: A Michael Leiter and NSA Associate Deputy Director briefing to the House Intelligence Committee pointed to the September 3, 2009 phone dragnet reauthorization as proof that NSA had regained FISC’s confidence, without mentioning further violations on September 21 and 23 — violations that NSA did not inform FISC about.

August 16, 2010: DOJ did not provide the Intelligence and Judiciary Committees with some of the pre-July 10, 2008 FISC rulings providing significant constructions of FISA pertaining to — at a minimum — Section 215 until after the first PATRIOT Reauthorization.

February 2, 2011: House Intelligence Chair Mike Rogers did not invite members of Congress to read the 2011 notice about the phone and Internet dragnets. Approximately 86 freshmen members — 65 of whom voted to reauthorize the PATRIOT Act, a sufficient number to tip the vote — had no opportunity to read that notice.

May 13, 2011: In a briefing by Robert Mueller and Valerie Caproni designed to substitute for the Executive’s notice to Congressmen about the phone and Internet dragnets, the following exchange took place.

Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

While the balance of the briefing remains redacted, this seems to suggest the FBI did not brief House Republicans about the dragnet violations.

September 1, 2011: NSA did not provide notice to the House Judiciary Committee about its testing of geolocation data under Section 215 until after the reauthorization of PATRIOT Act, in spite of the fact that it had been conducting such tests throughout the 2010 and 2011 debates on the PATRIOT Act.

The “McCain Committee” Would Be Full of NSA Defenders

/17 Comments/in , /by

Imagine a McCain Committee as the inheritor of the tradition of Frank Church and Otis Pike.

(Yes, I did that to make bmaz’ head explode.)

That seems to be what John McCain intends with his resolution calling for a Committee to Investigate the Dragnet. (h/t Steven Aftergood)

Only, McCain proposes to investigate not just whether NSA has engaged in things it was not authorized to do. But also to investigate Snowden’s leaks themselves and the potential role of contractors in making leaks more likely.

All that said, I might be excited about McCain’s proposal to review the dragnet, as described:

(3) The nature and scope of National Security Agency intelligence-collection programs, operations, and activities, including intelligence-collection programs affecting Americans, that were the subject matter of the unauthorized disclosure, including–

(A) the extent of domestic surveillance authorized by law;

(B) the legal authority that served as the basis for the National Security Agency intelligence-collection programs, operations, and activities that are the subject matter of those disclosures;

(C) the extent to which such programs, operations, and activities that were the subject matter of such unauthorized disclosures may have gone beyond what was authorized by law or permitted under the Constitution of the United States;

(D) the extent and sufficiency of oversight of such programs, operations, and activities by Congress and the Executive Branch; and

(E) the need for greater transparency and more effective congressional oversight of intelligence community activities.

There’s just one problem with McCain’s proposal.

Here’s the list of the people who would be on the Committee (he provides titles, I’m providing names):

  • Diane Feinstein
  • Saxby Chambliss
  • Carl Levin
  • Jim Inhofe
  • Tom Carper
  • Tom Coburn
  • Robert Menendez
  • Bob Corker
  • Pat Leahy
  • Chuck Grassley
  • Jello Jay Rockefeller
  • John Thune
  • A Harry Reid pick
  • A Mitch McConnell pick

There are a number of very big NSA defenders on this list — in addition to DiFi and Saxby, both Jello Jay and Coburn are Intel Committee members who have never questioned the dragnet (indeed, Coburn has called for getting rid of the controls on the phone dragnet!). Chuck Grassley, too, has generally been supportive of the dragnet in SJC hearings on the subject. Most of the rest are simply not the caliber of people who might critically assess the dragnet much less show real interest in Americans’ privacy. Only Carl Levin and Pat Leahy, alone among the 12 named members, have been explicitly skeptical of the dragnet at all.

McCain proposes a Select Committee to investigate the dragnet. And he proposes to fill it with people who are really happy with the dragnet as it currently exists.

Update: Just to give a sense of how terrible this make-up for a Select Committee is, compare it with the bipartisan list of 26 Senators who asked James Clapper for more information on other uses of Section 215 last June. Just one Senator from that list — Pat Leahy — would be on McCain’s committee.

Update: Haha! Via Matt Sledge, DiFi shot McCain’s idea down pretty quickly.

Density within Legal Density

/1 Comment/in , /by

Ben Wittes has a long post trying to explain the NSA’s job in such a way as to “tell a young student what intelligence collection under the rule of law looks like” without inducing “a sense of betrayal.”

I have no problem with Wittes’ attempt to develop such an explanation, nor any great gripe with his effort. I’m not going to accuse Wittes of being naked this time.

But I want to raise three details that show the problem behind the effort.

First, Wittes’ entire statement reads,

NSA does not, except in emergencies, intentionally target for collection the communications of specific Americans without seeking a court order first, and it does not intentionally target for collection the communications of individuals known to be in the United States. It does, however, routinely acquire and store the communications of US persons and some domestic communications as a necessary incident to its broad collection directed at targets overseas—and it then has rules restricting the retention and use of this material to the extent it does not have foreign intelligence value. What’s more, NSA routinely acquires in bulk the records, but not the contents, of domestic telephone communications, which it uses for narrow counterterrorism purposes.

With the caveat that most people’s definition of “target” is not as specific as NSA’s is, I don’t have a big issue with this statement.

Except that it is false to say the phone dragnet is only used “for narrow counterterrroism purposes.” As Dianne Feinstein stated and Keith Alexander confirmed back in June, the dragnet is used with al Qaeda related groups and with Iran.

It can only look at that data after a showing that there is a reasonable, articulable that a specific individual is involved in terrorism, actually related to al Qaeda or Iran.

Now, perhaps in reality the dragnet is used against Hizballah, which the US, at least, treats as a terrorist organization. But to the extent that the dragnet is used against specific individuals from Iran “involved in terrorism,” then the entire notion of “narrow counterterrorism purposes” goes out the window, because accusing Iran of engaging in terrorism, even in the context of Iraq (where I suspect such usage derives from) is problematic. That’s true not just because Iran has been the target of what might count as terrorist acts, including assassinations of civilians, but also because those whom we’ve listed as terrorists (including members of the Republican Guard and its bank) are engaged in what ought to be considered legitimate defense of a sovereign nation.

So even if you agree with the approach the US has adopted with Iran, including it among the terrorists you can use the phone dragnet against moves beyond “narrow” counterterrorism into counterterrorism as a tactical tool wielded against a state adversary. And that such definitions can happen in secret (Iran’s listings on Treasury’s terrorism list are not secret, but the choice to include it among the two general targets of the dragnet was secret until June) means there’s no reason to trust that the phone dragnet will remain narrowly targeted.

Then there’s the notion our targets are all overseas. They’re not. Hacking targets are in the US, and there’s good reason to believe the upstream collection is used against them (we do know there’s a cybersecurity certification for Section 702). NSA presumably manages to conduct this domestic spying in the guise of foreign intelligence by noting how difficult it is to attribute hacks (that’s also presumably how it justifies holding all encrypted communications indefinitely). In other words, what we’re seeing is a redefinition of “foreign” to incorporate more and more that is domestic, which in part amounts to using intelligence rather than law enforcement tools against criminal activity because some but not all of that criminal activity is propagated by states. (Note, in yesterday’s hearing Peter Swire suggested NSA’s info assurance function is where it serves as a domestic security agency.)

Then there’s this statement from Wittes:

We want a robust foreign intelligence capability. We don’t want our domestic relations between citizens and government conditioned by an intelligence agency—which necessarily uses secrecy, deceit and trade-craft that has no part in domestic governance.

This is why I harp constantly about the use of the dragnet to identify potential informants. Because it is precisely through that application of the dragnet where NSA’s activities lead directly to the the interjection of secrecy, deceit, and trade-craft in domestic governance. Sure, FBI (that hybrid intelligence/law enforcement agency) carries out that secrecy, deceit, and trade-craft, not NSA. But the power of the dragnet makes all that deceit potentially far worse (because it provides a way to exploit the secrets of innocent citizens to coerce them to become informants). That NSA is one step removed from this troubling approach does not mean it is not party to it.

Again, these are details, details which don’t necessarily invalidate Wittes’ larger point, but show that even within the larger framework, NSA has secretly violated those principles Wittes would like to believe.

Contractors Already Have Access to the Phone Dragnet

/5 Comments/in , /by

In today’s HJC hearing on the NSA, there was extensive discussion about the risks of outsourcing the dragnet to the telecoms or — especially, to a third party holding all the data. It’s a concern I share.

That said, not a single person at the hearing seemed to be aware of this footnote, which has been in the phone dragnet primary orders since at least last April.

5 For purposes of this Order, “National Security Agency” and “NSA personnel” are defined as any employees of the National Security Agency/Central Security Service (“NSA/CSS” or “NSA”) and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA).

If this language left any doubt that it permits contractors to directly query the database of every single phone-based relationship in the US, this language from Dianne Feinstein’s Fake FISA Fix bill report (which aims to codify the status quo) should eliminate them.

The Committee believes that, to the greatest extent practicable, all queries conducted to the authorities established under this section should be performed by Federal employees. Nonetheless, the Committee acknowledges that it may be necessary in some cases to use contractors to perform such queries. By using the term “government personnel” the Committee does not intend to prohibit such contractor use.

Contractors already have access to the dragnet.

If it presents a security threat to have contractors from Booz Allen Hamilton or some other intelligence contractor to have direct access to the dragnet, then we need to shut the dragnet down.

Because they’ve already got it.

Dianne Feinstein Protects John Brennan from Being Called a Liar

/9 Comments/in /by

Surprisingly, the most contentious comments from today’s Senate Intelligence Committee hearing on were not directed at James “Too Cute by Half” Clapper, but instead John Brennan. Both Martin Heinrich (who used the Early Bird rule to ensure he got to speak early in the hearing) and Mark Udall hit on John Brennan’s comments about the SSCI torture report given what the CIA concluded in an internal review carried out under Leon Panetta. First, Martin Heinrich accused CIA of intimidating legitimate oversight.

[Heinrich] accused Brennan of making statements about the Intelligence panel’s interrogation report that are “meant to intimidate, deflect and thwart legitimate oversight.”

“There’s a chasm between the committee and Director Brennan on some of these issues, but it doesn’t appear to be in the director’s nature to accept those overtures, frankly,” Heinrich said.

“I respectfully and vehemently disagree with your characterization of the CIA’s cooperation with this committee,” Brennan responded.

Heinrich asked Brennan to explain why the Panetta review had been disbanded, wherein Dianne Feinstein interrupted and said that was no an appropriate question for the hearing, at which point Heinrich rebutted DiFi.

“Actually, it doesn’t fully answer the question,” Heinrich responded.

Later, Udall suggested that Brennan’s stonewalling on this internal report suggested he might have been less than forthcoming in his earlier answers about the torture report (remember, Brennan has been dodging Udall’s questions on the torture report for a year).

Udall then asked if the internal review contradicted Brennan’s statement, which the CIA director said was not appropriate to respond to in a public setting.

“Are you saying that the CIA officers who were asked to produce this internal review got it wrong? Just like you said the committee got it wrong?” Udall asked.

“Senator, as you well know, I didn’t say that the committee got it wrong,” Udall shot back. “I said there were things in that report I disagreed with, there were things that I agreed with and I look forward with working committee on the next steps in report.”

That’s when DiFi interrupted again, suggesting this wasn’t an appropriate discussion for this hearing.

Curiously, in spite of DiFi’s insistence that all mention of the Panetta report — or what led it to being quashed — take place in closed session, the CIA claims it might release their report (if they can also release their rebuttal of the Senate report). But they’re still fighting the release of the 6,000 page SSCI torture report.

They’re likely using the same dodge DOJ just used in a FOIA from Jason Leopold (who is also suing for some or all the same reports ACLU is). They said they can’t release the torture report because DiFi owns it (remember, Congress is immune from FOIA).

A report completed more than a year ago by a Senate panel that investigated the CIA’s torture program can only be released by the committee, which maintains complete “control” over the highly classified document, the Justice Department said in a court filing late Friday.

The Justice Department made that claim in response to a Freedom of Information Act (FOIA) lawsuit I filed against the agency last September, in which I asked for a copy of the 300-page executive summary of the Senate Select Committee on Intelligence’s (SSCI) much sought after $40 million torture report. The Justice Department asked a federal court judge Friday to dismiss my case, arguing it does not have the authority to disseminate the report because it is a “congressional record” as opposed to an “agency record,” which would make it subject to provisions of FOIA.

So DiFi doesn’t want Brennan to have to admit in public session that even the CIA found the CIA torture program didn’t work. And DiFi seems to be the single solitary hold-up for releasing her own Committee’s torture report.

Why is DiFi protecting John Brennan and his agency rather than overseeing them?

The Maneuvers to Get Ahead of the NSA Review Group Recommendations

/8 Comments/in , /by

Here’s a quick summary of all the events happening in response to the NSA Review Group report:

Tuesday, January 7: James Clapper “and other Intelligence Community Leaders” meet with Geoffrey Stone, Cass Sunstein, and Peter Swire; SSCI holds closed briefing with Review Group

Wednesday, January 8: Obama meets with Intelligence Community leaders; Obama meets with PCLOB; NatSec Aides and Congressional staffers meet in Situation Room

Thursday, January 9: Obama meets with (reportedly invited) Dianne Feinstein, Saxby Chambliss, Mike Rogers, Dutch Ruppersberger, Pat Leahy, Chuck Grassley, Bob Goodlatte, John Conyers, Ron Wyden, Mark Udall, and Jim Sensenbrenner

Tuesday, January 14: Review Group testifies publicly before Senate Judiciary Committee

PCLOB, which I believe has a better understanding of the dragnet than several members of the Review Group, was supposed to present its own recommendations sometime this month, and the White House claims to be conducting its own internal review which is finishing up work.

I raise this schedule to point to the several times when Obama will meet with advocates for reform in a venue where some horse-trading can go on. Not only will he meet with PCLOB before their recommendations come out (as he met with the Review Group), but he will have the sponsors of legislation that would reform NSA and FBI’s counterterrorism programs, as well as Wyden and Udall, in a room with a larger number of opponents of reform.

Jay Carney said today Obama will introduce his own “reforms” before the State of the Union on January 28. But I wouldn’t be surprised if Obama moved to pre-empt these other discussions even earlier than that, as he did with the Review Group suggestion that the Director of the NSA position be split from the Cybercommand position.

Will he try to get an agreement from the legislative critics to withdraw their legislation if he makes some changes as executive prerogative?

Sucky Assessments of the Phone Dragnet Reveal How Much They’re Keeping “Secret”

/12 Comments/in , /by

The assessments of the phone dragnet suck.

I don’t mean the assessments of the phone dragnet show the program sucks, though that may well be the case. I mean the assessments of the phone dragnet I’ve seen do a very poor job of assessing the value of it. Which serves to show how much of the larger dragnet remains, if not secret, still largely undiscussed.

To see what I mean, consider this post, from Just Security’s Ryan Goodman.

Insiders disagree about the phone dragnet value with outsiders

The strongest part of his post compares the seemingly contradictory assessments of the phone dragnet by two different members of the NSA Review Group. University of Chicago Professor Geoffrey Stone and Deputy Director of CIA Mike Morell.

Stone, based on what he learned from public sources and from the briefings the Group received, believes the program did not prevent any terrorist attacks. Morell, whose former agency receives Tippers from the program and even had direct access to query results until 2009 just like the FBI does and did (though no one talks about that) insists it has helped prevent terrorist attacks.

Goodman also notes that the Gang of Four immediately defended the phone dragnet after the Review Group released its results (actually, they object to more than the phone dragnet recommendation but don’t say what other recommendations they object to), but doesn’t note the terms they use to do so:

However, a number of recommendations in the report should not be adopted by Congress, starting with those based on the misleading conclusion that the NSA’s metadata program is ‘not essential to preventing attacks.’ Intelligence programs do not operate in isolation and terrorist attacks are not disrupted by the work of any one person or program. The NSA’s metadata program is a valuable analytical tool that assists intelligence personnel in their efforts to efficiently ‘connect the dots’ on emerging or current terrorist threats directed against Americans in the United States. The necessity of this program cannot be measured merely by the number of terrorist attacks disrupted, but must also take into account the extent to which it contributes to the overall efforts of intelligence professionals to quickly respond to, and prevent, rapidly emerging terrorist threats. [my emphasis]

In other words, Goodman presents evidence that the Gang of Four and a former top CIA official believe there are other reasons the phone dragnet is valuable, while someone relying on limited briefings evaluates the program based on its failure to stop any attack.

That ought to make Goodman ask what Morell and Dianne Feinstein know (or think they know) that Stone does not. It ought to make him engage seriously with their claim that the phone dragnet is doing something else beyond providing the single clues to prevent terrorist attacks.

One they’re not willing to talk about explicitly.

Assessments and the terrorist attack thwarted metric

Instead, Goodman assesses the phone dragnet solely on the basis of the public excuse offered over and over and over since the Guardian first published the Verizon order in June: to see which Americans are in contact with (alleged) terrorist associates so as to prevent an attack.

Goodman lectures program critics that identifying funders or members of terrorist groups might help find terrorists, too, and “peace of mind” might help dedicate resources most productively.

The key objective of course is to stop terrorist attacks against the US homeland and vital US interests abroad. An important distinction, however, is whether the intelligence generated by the program is:

(a) “direct”: timely information to foil a specific attack; or

(b) “indirect”: information that enables the government to degrade a terrorist group or decrease the general likelihood of attacks

Examples of the latter might include information on individuals who have joined or are funding a terrorist organization. Intelligence could help to identify and successfully prosecute such individuals, and hence disable them and deter others. The important point is that both types of information aid the overall goal of stopping terrorist attacks. That point appears to have been lost on some critics of the program. When the government cites the latter information yields, critics often consider such situations irrelevant or little to do with stopping attacks.

But Goodman imagines only those affirmatively supporting terrorism would help the government prevent terrorism, which is not necessarily the case.

Does the NSA’s network analysis even pick the right calls?

One thing missing from such assessments are the failures. Why didn’t, for example, Faisal Shahzad’s planning with the Pakistani Taliban identify him and his hawala before the attack? There are plausible explanations: he used good enough operational security such that he had no communications that could have included in the dragnets, his TTP phone and Internet contacts were not among the services sucked up, the turmoil in the phone and (especially) Internet dragnet in 2009 and 2010 led to gaps in the collection. Then there’s a far more serious one: that the methods NSA use to identify numbers of interest may not work, and may instead only be identifying those whose doings with terror affiliates are relatively innocent, meaning they don’t use operational security (though note the US-based phone dragnets would use more sophisticated analysis only after data gets put in the corporate store, whereas data collected overseas might be immediately subject to it).

And for those who, like Goodman, place great stock in the dragnet’s “peace of mind” metric, they need to assess not just the privacy invasion that might result, but the resources required to investigate all possible leads — which could have been upwards of 36,000 people in the Boston Marathon case.

That is, unless we have evidence that NSA’s means of picking the interesting phone contacts from the uninteresting ones works (and given the numbers involved, we probably don’t have that), then the dragnet may be as much a time suck as it is a key tool.

What about the other purposes the Intelligence Community has (quietly) admitted?

The other problem with assessments of the phone dragnet is they don’t even take the IC at its word in its other, quieter admissions of how it uses the dragnet (notably, in none of Stone’s five posts on the dragnet does he mention any of these — one, two, three, four, five — raising questions whether he ever learned or considered them). These uses include:

  • Corporate store
  • “Data integrity” analysis
  • Informants
  • Index

Corporate store: As the minimization procedures and a few FISC documents make clear, once the NSA has run a query, the results of that query are placed in a “corporate store,” a database of all previous query results. Read more →

Parallel Constructing Daoud’s Emails

/5 Comments/in /by

Judge Sharon Johnson Coleman held a hearing Friday in the Adel Daoud case on whether the government needs to reveal how it collected certain communications from Daoud. That would be notable in any case, given that Daoud is one of the defendants Dianne Feinstein invoked during debate of the FISA Amendments Act reauthorization who has not, however, been noticed that FAA was used to bust him.

But it gets more interesting given something the prosecutor in the case, William Ridgway, said in Friday’s hearing.

Another Daoud attorney, Josh Herman, said some documents turned over by prosecutors, including emails dated 2011, seemed to support defense attorneys’ claim that warrantless surveillance was used on Daoud.

“This is not tin-foil hat paranoia,” Herman said.

But prosecutor William Ridgway said that the 2011 emails may have been found on Daoud’s computer that authorities seized with a warrant in 2012.

If the government did target Daoud only after sifting through communications data without a warrant, the defense wants to challenge all subsequent evidence on the grounds it was gathered through a violation of Daoud’s constitutional rights against unreasonable searches.

The criminal complaint describes an email account Daoud used to “obtain and distribute material … relating to violent jihad” going back to October 2011. That was 7 months before the FBI’s online undercover officers first contacted Daoud — purportedly in response to things he had posted publicly — to set up their sting.

So did the FBI’s investigation of Daoud really start in May 2012, as the complaint sort of implies. In which case, why mention the earlier emails? Or did they identify Daoud via emails collected back in 2011? What legal authority did they use to access those emails? And if they did, what explains the 7 month delay in their sting?

In discussions of where those emails came from at the hearing, Ridgway was non-committal, suggesting they “may” have come from a search on his computer seized with a warrant, but not claiming they did. (The government noticed both FISA wiretap and physical search information, the latter of which often means searches of stored communications, which is presumably another way they could have obtained the emails, if Daoud didn’t delete them, but he appears to have been fairly attentive to hiding his digital tracks by 2012.)

The timing of that claimed start date — October 2011 — is particularly intriguing. Not only is that around the time Daoud turned 18. But it also dates to John Bates’ October 3, 2011 approval (for the first time) of NSA (and CIA)’s use of back door searches on previously collected data and minimization procedures that addressed his concerns about the illegal upstream collection.

I have, in the past, suggested they may have identified Daoud (or perhaps found these emails) via a back door search. While there’s no direct evidence of what collection may have included Daoud, it’s possible they collect URL searches or hits on certain websites from which he collected extremist material.

But it’s also conceivable they identified Daoud via an upstream content search (that is, email collected at a telecom switch via a search on some of the content he had in his emails). For example, perhaps NSA first picked up Daoud’s contacts based on him sending Anwar al-Awlaki materials on October 9 and 18, 2011. It’s conceivable NSA tracks online jihad membership notices, like the one Daoud received on February 6, 2012. It’s likely they track links to sites making Inspire available, such as the URL Daoud sent himself on May 9, 2012 (the initial contacts with online undercover FBI officers were on May 14 and May 17, 2012). If so, any of those emails that transited certain collection points might be sucked up as part of NSA’s use of Section 702 to search on content.

Remember though: NSA has claimed they won’t use these authorities in tandem. They told John Bates they would not conduct back door searches on upstream collection. If they got any of this via upstream collection, they presumably should not be able to go back and search for Daoud (though who knows how NSA finesses this issue via tech claims).

This is why Ridgway’s comment is so striking. Ridgway seemed to suggest there were two possible ways (three, with collection of stored emails) the government could have obtained Daoud’s earlier emails.

Does he know for a fact there are two different ways to get these emails, because the government used both? Does he know there are two ways to get them because the government is using parallel construction to hide one of their more exotic uses of FISA collection from Judge Coleman?

Either of these practices — accessing Daoud’s communications at a time when he had done nothing beyond engage in potentially hateful speech via back door search, or obtaining his emails via upstream collection — would present a use of FISA that, while approved by FISA Judge John Bates (assuming it started after October 3, 2011), has not been known to be scrutinized by an Article III judge presiding in a criminal case. So there’d be a big incentive for the government to use parallel construction to hide the underlying collection.

Of course, it’s most likely — given Judges’ unwillingness to be the first to challenge the government’s ability to keep all FISA materials secret — that we’ll never know, that Daoud will be denied any more information about how the government first identified him as a terrorism lead.

Obviously Bogus Clapper Exoneration Attempt 4.0

/19 Comments/in , /by

[youtube]QwiUVUJmGjs[/youtube]

Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly. [After 6:38]

Almost immediately after the first Edward Snowden leaks proved James Clapper lied when he told Ron Wyden the NSA doesn’t collect data of any kind on millions of Americans, Clapper explained that he meant the NSA didn’t vicariously pore through Americans’ emails.

“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.

That is, his first response was about reading emails in a certain smarmy fashion; he did not apparently deny collecting them.

Then, with a bit more time to think up an excuse, he admitted to Andrea Mitchell that he had been “too cute by half” but didn’t really explain what semantic excuse he had invented for himself.

First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

[snip]

And this has to do with of course somewhat of a semantic, perhaps some would say too– too cute by half. But it is– there are honest differences on the semantics of what– when someone says “collection” to me, that has a specific meaning, which may have a different meaning to him. [my emphasis]

Nevertheless, the implication, less than a week after Snowden’s first revelations, was that collecting Americans’ metadata doesn’t count until you access it, which seems to address the phone dragnet data (though would apply to incidentally collected US person data as well).

Perhaps because his Mitchell answer only increased the mockery, Clapper thought up a new answer, one he sent Senate Intelligence Committee Chair Dianne Feinstein 3 months after he lied to her committee.

I have thought long and hard to re-create what went through my mind at the time. Read more →