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Dianne Feinstein Glosses Jeffrey Miller Phone Dragnet Decision

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Dianne Feinstein just released a statement effectively saying she likes the FISA Court phone dragnet decisions and the one Judge Jeffrey Miller made in the Moalin case better than the one Richard Leon issued yesterday.

Clearly we have competing decisions from those of at least three different courts (the FISA Court, the D.C. District Court and the Southern District of California). I have found the analysis by the FISA Court, the Southern District of California and the position of the Department of Justice, based on the Supreme Court decision in Smith, to be compelling.

But I’m particularly interested in the way she describes the Miller decision.

It should be noted that last month Judge Jeffrey Miller of the Southern District of California found the NSA business records program to be constitutional.

Judge Miller was ruling on a real world terrorist case involving the February 2013 conviction of Basaaly Moalin and three others for conspiracy and providing material support to the Somali terrorist organization Al-Shabaab. In that case, the NSA provided the FBI with information gleaned from an NSA query (under Section 215) of the call records database that established a connection between a San Diego-based number and a number known to be used by a terrorist with ties to al Qaeda.

In upholding these convictions, Judge Miller cited Smith v. Maryland (1979) the controlling legal precedent and held the defendants had ‘no legitimate expectation of privacy’ over the type of telephone metadata acquired by the government—which is the ‘to’ and ‘from’ phone numbers of a call, its time, its date and its duration. There is no content, no names and no locational information acquired.

As a threshold matter, Judge Miller did not decide last month that the phone dragnet was constitutional. He decided sometime around June 5, 2012, and that decision remains sealed in its entirety. He treated Moalin’s bid for a new trial as a reconsideration of his earlier decision, stating he had,”already considered and addressed many of the FISA and CIPA arguments from a federal and constitutional law perspective.” He deliberated just one day after the hearing on a new trial before rejecting the motion. Which means that his decision rests primarily on whatever representations the government made in secret — and none of us have gotten to see that decision.

If Senator Feinstein would like to use her position on the Senate Intelligence and Judiciary Committees to liberate that decision given that she’s relying on it, by all means let’s have some transparency!

Now look at how Feinstein characterizes the issue before Miller:

[T]he NSA provided the FBI with information gleaned from an NSA query (under Section 215) of the call records database that established a connection between a San Diego-based number and a number known to be used by a terrorist with ties to al Qaeda.

That is, she characterizes Miller’s review as weighing whether using an (at least) second-degree hop in a database to establish probable cause is Constitutional.

But that’s most definitely not what Miller did. Instead, he ignored the database entirely (the word “database” doesn’t appear in his ruling), and assessed the use of what Feinstein describes as a database query as two separate pen registers.

Defendants argue that the collection of telephony metadata violated Defendant Moalin’s First and Fourth Amendment rights. At issue are two distinct uses of telephone metadata obtained from Section 215. The first use involves telephony metadata retrieved from communications between third parties, that is, telephone calls not involving Defendants. Clearly, Defendants have no reasonable expectation of privacy to challenge any use of telephony metadata for calls between third parties. See Steagald v. United States, 451 U.S. 204, 219 (1981) (Fourth Amendment rights are personal in nature); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”); United States v. Verdugo-Uriquidez, 494 U.S. 259, 265 (1990) (the term “people” described in the Fourth Amendment are persons who are part of the national community or may be considered as such). As noted in Steagald, “the rights [] conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” 451 U.S. at 219. As individuals other than Defendants were parties to the telephony metadata, Defendants cannot vicariously assert Fourth Amendment rights on behalf of these individuals. To this extent, the court denies the motion for new trial.

The second use of telephony metadata involves communications between individuals in Somalia (or other countries) and Defendant Moalin. The following discusses whether Defendant Moalin, and other Defendants through him, have any reasonable expectation of privacy in telephony metadata between Moalin and third parties, including co-defendants. [my emphasis]

I believe that in documents that have been released since Miller’s ruling, the government distinguished this from pen registers (digging up those references now). But one thing’s clear: Miller didn’t approve the use of a database to show that his two-degree link between Moalin and Aden Ayro amounted to probable cause that he was an agent of a foreign power. He approved of two or more discrete pen registers.

That may or may not amount to a legal difference (Leon didn’t consider the database as such either). But I find it mighty telling that Feinstein describes the dragnet in terms her favored criminal ruling does not.

“We’re Not Going to Leave It To the Guy Who Lies to Congress with Impunity Anymore”

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The regular outlets for NSA leakers are presenting details of the recommendations the NSA Review Committee has given to President Obama (Gorman, Sanger). Curiously, Siobhan Gorman suggests that because the recommendations closely following the Leahy-Sensenbrenner bill, it bodes well for passage of that bill.

The panel’s idea “aligns very closely” with a bill offered by House Judiciary Committee Chairman James Sensenbrenner (R., Wis.) and Senate Judiciary Chairman Patrick Leahy (D., Vt.), said one person familiar with the report, suggesting it could give ammunition to congressional efforts.

From what I’ve seen so far, I’m not sure that’s actually true. Moreover, that’s not how intelligence reform generally works. Rather, usually the executive adopts changes asked by Congress, thereby dissuading Congress from actually passing those changes into enforceable law. With Jim Sensenbrenner correctly calling Dianne Feinstein’s Fake FISA Fix “a joke” and growing number of co-sponsors for Sensenbrenner’s bill, I can imagine why the Executive would want to pre-empt actual law.

Significantly, the proposed recommendations don’t end the concept of a phone dragnet; they just move administration of it elsewhere — either a third party or the telecoms — equally prone for abuse. The Review Committee apparently didn’t review efficacy of these programs.

Besides, according to David Sanger, the proposals predictably focus  more on Angela Merkel’s privacy than the hundreds of millions of others whose privacy the NSA compromises.

The advisory group is also expected to recommend that senior White House officials, including the president, directly review the list of foreign leaders whose communications are routinely monitored by the N.S.A. President Obama recently apologized to Chancellor Angela Merkel of Germany for the N.S.A.’s monitoring of her calls over the past decade, promising that the actions had been halted and would not resume. But he refused to make the same promise to the leaders of Mexico and Brazil.

Administration officials say the White House has already taken over supervision of that program. “We’re not leaving it to Jim Clapper anymore,” said one official, referring to the director of national intelligence, who appears to have been the highest official to review the programs regularly.

[snip]

[National Security Council spokesperson Caitlin Hayden] added that the review was especially focused on “examining whether we have the appropriate posture when it comes to heads of state; how we coordinate with our closest allies and partners; and what further guiding principles or constraints might be appropriate for our efforts.”

It’s that James Clapper line that ought to be the tell, however: that folks within the Administration are boldly stating that James Clapper won’t be able to run amok anymore.

The same James Clapper, of course, on whom the White House imposed no consequences for lying to Congressional overseers.

Which brings me to my favorite detail, from the NYT:

One of the expected recommendations is that the White House conduct a regular review of those collection activities, the way covert action by the C.I.A. is reviewed annually.

Obama suggested last week he serves in no more than an advisory role for the Deep State, someone who can propose changes, but not someone who can order them. That an advisory committee has to tell the President that the NSA operates with less oversight than the CIA whose covert operations have systematically exceeded the claimed authority granted by the President says something.

I do fear this Review will pre-empt some of the most important legislative fixes.

But I also hope we’ll finally see heightened distance between the Deep State and the Executive that is overdue for reining it in.

Yup, John Brennan Rolled DiFi on the Torture Report

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Brennan with TortureThe 15th paragraph of this story on CIA’s continuing efforts to water down the Senate Intelligence Committee’s torture report reads,

The CIA’s current director, John Brennan, was a senior agency official when the harshest CIA tactics were in use. Officials said that in closed-door meetings with Congress, he complained the Senate report contained major inaccuracies.

It is utterly predictable that Brennan, who refused to read the report before he got confirmed, would, after he was confirmed, decide it was inaccurate. See here, here, here, here, here, here, and here for just some of the bread crumbs this would happen.

Since I was right about John Brennan being completely untrustworthy about bringing an open mind to the evidence presented in the Torture Report, let me make another prediction based on this detail.

Committee aides said the panel hoped to finish work on an updated version of the report, taking note of CIA comments, by the end of the year. The committee could then vote to request declassification, which would allow the public to see the report, or at least parts of it.

What’s going to happen is the SSCI will water down the report, ignoring the clear implications of the evidence, in hopes of getting support for declassification. The Republicans on the committee, at least, still won’t vote to declassify it. Some section of the watered-down report will be released. And the historical record on torture will not reflect the clear evidence in the documentary record.

Dianne Feinstein could, of course, move to declassify the report in its current state.

But she won’t do that, and John Brennan knows it. You see, he knows DiFi wants to be loved by the spooks she oversees, and they could care less what she thinks of them, so long as they continue to hide the true nature of their organizations. And her desire to be loved by those she oversees makes her an easy mark.

 

Did DOJ Prosecute Basaaly Moalin Just to Have a Section 215 “Success”?

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At yesterday’s Senate Judiciary Committee hearing on the dragnet, the government’s numbers supporting the value of the dragnet got even worse. At one point, Pat Leahy asserted that the phone dragnet had only been useful in one case (in the last hearing, there had been a debate over whether it had been critical in one or two cases).

Leahy (after 1:09:40): We’ve already established that Section 215 was uniquely valuable in just one terrorism case, not the 54 that have been talked about before.

In a follow up some minutes later, Keith Alexander laid out numbers that explain how the Administration had presented that 1 case as 12 in previous claims.

Alexander (at 1:21:30): As you correctly stated, there was one unique case under 215 where the metadata helped. There were 7 others where it contributed. And 4 where it didn’t find anything of value, and we were able to tell the FBI that.

That is, to publicly claim that the phone dragnet has been useful in 12 cases, the Administration included 7 cases where — as with the Najibullah Zazi case — it proved to be a tool that provided non-critical information available by other means, and 4 cases where it was useful only because it didn’t show any results.

To fluff their numbers, the Administration has been counting cases where the phone dragnet didn’t show results as showing results of no results.

With sketchy numbers like that, it’s high time for a closer examination of the details — and the timing — of the Basaaly Moalin prosecution, the only case (Alexander now agrees) where the phone dragnet has been critical.

As a reminder, Moalin was first identified via the dragnet — probably on a second hop away from Somali warlord Aden Ayro — in October 2007.  They used that and probably whatever tip they used to investigate him in 2003 to get a FISA warrant by December 20, 2007. Only 2 months later, February 26, 2008, was al-Shabaab listed as a foreign terrorist organization. Ayro was killed on May 1, 2008, though the government kept the tap on Moalin through December 2008, during which period they collected evidence of Moalin donating money (maybe 3 times as much as he gave to al-Shabaab-related people) to a range of people who had nothing to do with al-Shabaab. A CIPA stipulation presented at the trial revealed that during this period after the inculpatory conversations, Moalin’s tribe and Shabaab split and Moalin’s collections supported other entities in Somalia.

1. Money collected for the Ayr sub-clan was given to individuals including Abukar Suyare (Abukar Mohamed) and Fare Yare, who were associated with the Ilays charity.

2. Money collected by the men in Guracewl on behalf of the Ayr sub-clan was given to a group that was not as-Shabaab. [sic]

3. There was a dispute between al-Shabaab, the Ayr clan and Ilays over the administration pf [sic] of Galgaduud regions.

4. Members of the Ilays charity and the Ayr sub-clan, including Abukar Suryare, were opposed to the al-Shabaab and were Ayrow’s enemies.

On April 8, 2009, FBI would search the hawala used to send money based entirely on Moalin’s case. Yet on April 23, 2009, according to a document referenced but not provided to Moalin’s defense, the FBI concluded that Moalin not only no longer expressed support for al-Shabaab, but that he had only ever supported it because of tribal loyalties, not support for terrorism.

The San Diego FIG assesses that Moalin, who belongs to the Hawiye tribe/Habr Gedir clan/Ayr subclan, is the most significant al-Shabaab fundraiser in the San Diego Area of Operations (AOR). Although Moalin has previously expressed support for al-Shabaab, he is likely more attentive to Ayr subclan issues and is not ideologically driven to support al-Shabaab. The San Deigo FIG assesses that Moalin likely supported now deceased senior al-Shabaab leader Aden Hashi Ayrow due to Ayrow’s tribal affiliation with the Hawiye tribe/Habr Gedir clan/Ayr subclan rather than his position in al-Shabaab. Moalin has also worked diligently to support Ayr issues to promote his own status with Habr Gedir elders. The San Diego FIG assesses, based on reporting that Moalin has provided direction regarding financial accounts to be used when transferring funds overseas that he also serves as a controller for the US-based al-Shabaab fundraising network.

The intercepts on which the prosecution was based support this. They show that Moalin’s conversations with Ayro and others focused on fighting the (American-backed) Ethiopian invaders of his region, not anything outside of Somalia.

Read more →

Three-Hopping the Corporate Store, in Theory

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Stanford University has been running a project to better understand what phone metadata can show about users, MetaPhone, in which Android users can make their metadata available for analysis.

They just published a piece that suggests we could be underestimating the intrusiveness of the government’s phone dragnet program. That’s because most assumptions about degrees of separation consider only human contacts, and not certain hub phone numbers that quickly unite us.

A common approach for calculating these figures has been to simply assume an average number of call relationships per phone line (“degree”), then multiply out the number of hops. If a single phone number has average degree d, and the NSA can make h hops, then a single query gives expected access to about dh complete sets of phone records.3, 4


We turned to our crowdsourced MetaPhone dataset for an empirical measurement. Given our small, scattershot, and time-limited sample of phone activity, we expected our graph to be largely disconnected. After all, just one pair from our hundreds of participants had held a call.

Surprisingly, our call graph was connected. Over 90% of participants were related in a single graph component. And within that component, participants were closely linked: on average, over 10% of participants were just 2 hops away, and over 65% of participants were 4 or fewer hops away!

In spite of the fact that just 2 of its participants had called each other, the fact that so many people had called TMobile’s voicemail number connected 17% of participants at two hops.

Already 17.5% of participants are linked. That makes intuitive sense—many Americans use T-Mobile for mobile phone service, and many call into voicemail. Now think through the magnitude of the privacy impact: T-Mobile has over 45 million subscribers in the United States. That’s potentially tens of millions of Americans connected by just two phone hops, solely because of how their carrier happens to configure voicemail.

And from this, the piece concludes that NSA could get access to a huge number of numbers with just one seed.

But our measurements are highly suggestive that many previous estimates of the NSA’s three-hop authority were conservative. Under current FISA Court orders, the NSA may be able to analyze the phone records of a sizable proportion of the United States population with just one seed number.

This analysis doesn’t account for one thing: NSA uses Data Integrity Analysts who take out high volume numbers — numbers like the TMobile voice mail number.

Here’s how the 2009 End-to-End review of the phone dragnet described their role.

As part of their Court-authorized function of ensuring BR FISA metadata is properly formatted for analysis, Data Integrity Analysts seek to identify numbers in the BR FISA metadata that are not associated with specific users, e.g., “high volume identifiers.” Read more →

Scary Terror Metrics: Do Indicted “Terrorists” Really Measure Back Door Spying?

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Screen shot 2013-12-04 at 9.02.37 AM

Given how often fellow Michigander Juan Cole and I demonstrate what a mendacious hack Mike Rogers is…

Mike Rogers voted to give arms to the Syrian rebels. And while he may hope they don’t go to the al-Qaeda affiliates (as happened when Ronald Reagan gave $5 billion to the Afghan Mujahidin in the 1980s), he has no guarantee that won’t happen and is willing to take the risk. If Rogers were really, really concerned about the Jabhat al-Nusra, he wouldn’t be risking upping its firepower with Americans’ tax dollars as a justification for monitoring who your 15 year old daughter calls on her cell phone.

Let us say that again. Feinstein and Rogers just came on television to scaremonger the American people with the Syrian jihadis, and both of them voted to give the Syrian rebels millions of dollars in arms.

… You’d think some of the MI press might look into it.

Thankfully, Cole and I are no longer the only ones asking substantive questions about Rogers and Dianne Feinstein’s fearmongering on this Sunday’s shows. Peter Bergen has a piece that — like Cole — looks at actual numbers to challenge their claims. He relies on a New America Foundation study of Americans and residents indicted or killed over the last decade, showing that those numbers show terrorism to be going down (and be propagated by smaller, less capable groups).

But is there any real reason to think that Americans are no safer than was the case a couple of years back? Not according to a study by the New America Foundation of every militant indicted in the United States who is affiliated with al Qaeda or with a like-minded group or is motivated by al Qaeda’s ideology.

In fact, the total number of such indicted extremists has declined substantially from 33 in 2010 to nine in 2013. And the number of individuals indicted for plotting attacks within the United States, as opposed to being indicted for traveling to join a terrorist group overseas or for sending money to a foreign terrorist group, also declined from 12 in 2011 to only three in 2013.

Of course, a declining number of indictments doesn’t mean that the militant threat has disappeared. One of the militants indicted in 2013 was Dzhokhar Tsarnaev, who is one of the brothers alleged to be responsible for the Boston Marathon bombings in April. But a sharply declining number of indictments does suggest that fewer and fewer militants are targeting the United States.

Recent attack plots in the United States also do not show signs of direction from foreign terrorist organizations such as al Qaeda, but instead are conducted by individuals who are influenced by the ideology of violent jihad, usually because of what they read or watch on the Internet.

None of the 21 homegrown extremists known to have been involved in plots against the United States between 2011 and 2013 received training abroad from a terrorist organization — the kind of training that can turn an angry, young man into a deadly, well-trained, angry, young man.

Of these extremists, only Tamerlan Tsarnaev, one of the alleged Boston bombers, is known to have had any contact with militants overseas, but it is unclear to what extent, if any, these contacts played in the Boston Marathon bombings. [my emphasis]

The post got me thinking about the validity of this metric. Are the number of people indicted since 2009 a reflection of the actual threat, or that Federal officials have exhausted all the leads they’ve gotten from backdoor searches of existing COMINT collections?

Consider what one anonymous source said in the months after Anwar al-Awlaki was killed.

U.S. intelligence analysts miss the publication, too, at least to the extent that it provided a window into the thinking of al-Qaeda in the Arabian Peninsula, as the Yemen-based group is known.

“It was something that helped us gain insight into the group,” said a U.S. defense official involved in tracking AQAP, who spoke on the condition of anonymity. The publication’s apparent demise is “an intelligence loss for us,” the official said.

Yet Inspire probably wasn’t just a window onto AQAP’s thinking (if it really was that). Particularly given the indications NSA had some access to its code (if I were NSA I would have attached some kind of flag to the code used to decrypt the document, and I would also search on that code in upstream collection), I would assume Inspire was a major source of leads. So did killing Awlaki and Samir Khan simply make it harder for US officials to find Muslims to trap in stings over time?

NAF’s data is inconclusive on this point.  Read more →

“Journalists” Still Parroting DiFi’s Fear-Mongering

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Excuse me for a little post holiday crabbiness.

But people who write stories like this are really not doing their jobs.

Appearing on CNN’s “State of the Union,” Sen. Dianne Feinstein, D-CA said there was “huge malevolence” against the United States, and warned that the terrorism threat against the country is on the rise.  “I think terror is up worldwide,” she said. “The numbers are way up.”

[snip]

Both lawmakers admitted that the more diffuse nature of today’s terrorist groups has made it harder to counter potential threats. Rogers pointed out that the rise in al-Qaeda affiliates spread around the globe raises the risk of a smaller scale attack and makes it “exponentially harder” for U.S. intelligence to keep track of them all.

It has been clear for two weeks that this fearmongering is part of an attempt to justify the dragnet. But the premise and the response are so illogical they should never be presented as “news.”

If we’re less safe, then what thousands of experts will be fired for screwing up the war on terror?

If we’re less safe, then why aren’t our overseers scrambling to understand why massive dragnets haven’t kept us safe?

If we’re less safe, than why isn’t the press asking why both Dianne Feinsein and Mike Rogers be fired for their failures?

If we’re less safe (and the real numbers don’t support these fear-mongers), then the response should be far more aggressive than simply repeating the claims that show a massive failure on the part of our security establishment.

But, if the claims are transparently bullshit, then reporters should not report them as fact.

DiFi’s Circular Defense of the Phone Dragnet’s Legality Proves It Is Illegal

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In the report on her own Fake FISA Fix, DiFi makes this case that the phone dragnet program is not illegal.

First, in reference to the call records program, some people will say that the FISA Improvements Act codifies an illegal program. It does not. This legislation does not provide any new legislative authority with which the government may acquire call records or any other information under Section 215—in fact, it narrows the existing authority for it. Section 2 of the FISA Improvements Act clearly prohibits the use of the Business Records authority to collect bulk communication records except through the supplemental procedures and restrictions required by this section, as are detailed in this report.

As part of this previously classified program, in 2006, the Department of Justice sought approval from the FISA Court to collect call records in large number under the Section 215 Business Records provision. The FISA Court approved that request, and has reviewed and renewed that authority every 90 days for the past seven years. These renewal applications have been approved by at least 15 different federal court judges selected by the Chief Justice of the United States to serve on this Court.

The Department of Justice’s legal analysis of the call records program has recently been publicly released, as have the two most recent opinions by the FISA Court as part of the reauthorization of the program every 90 days.

Critics of the program may dispute the legal reasoning, but there should be no disagreement that this program currently is authorized under law and has been determined to be legal and Constitutional by the Executive and Judicial branches. [my emphasis]

Her rebuttal that this doesn’t codify the program is pretty funny given that just 1 paragraph earlier she talks about “codifying existing privacy protections,” which is the equivalent claim.

I’m more interested in what she doesn’t address.

She lays out how DOJ applied for and got authorization to collect this data in 2006 (she doesn’t say what date).

She points to two FISC court opinions — the one that forgot to address Jones and the one that cleaned up that obvious error — and the Administration White Paper. And she claims that’s “the legal reasoning.”

But of course, it’s not. There was either legal reasoning dated February 24, 2006 that they’re hiding, or there was an absence of legal reasoning, which ought to be a major giveaway in either case.

Moreover, all three documents DiFi points to as “the legal reasoning” suffer from a critical flaw. They all point to Congress’ “fully informed” reauthorization of the law to justify the validity of the law today.

But that “fully informed” reauthorization didn’t happen.

Indeed, DiFi’s own comments on the Fake FISA Fix twice tacitly admit that, when she notes that every member of the Senate got a chance to read notice on the dragnet, while remaining silent about the House.

In addition, information concerning the bulk telephone metadata program has been made available to every member of the Senate prior to the reauthorization of Section 215, most recently in 2011.

[snip]

For example, the NSA telephone metadata program was approved by federal judges and overseen by Congress, where every member of the Senate had access to information concerning how the programs were conducted and an opportunity to voice objections and debate their efficacy.

The White Paper goes even further. It obliquely admits not just that Mike Rogers refused to allow the House to learn about the dragnet before they voted on it.

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011). [my emphasis]

But it also, even more obliquely, admits that the Executive did not provide the legal reasoning in question until August 16, 2010, after PATRIOT was reauthorized the first time.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this [Section 215] 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]

So to sum up DiFi’s legal defense of the dragnet:

  1. Three documents say it is legal
  2. All 3 documents say it is legal largely because Congress has reauthorized a previously legally suspect program
  3. One of those 3 documents that says it is legal because Congress reauthorized a legally suspect program admits (obliquely) that Congress was not fully informed either time it reauthorized that suspect program
  4. DiFi’s document pointing to these 3 documents claiming it is legal because Congress reauthorized a legally suspect program also admits Congress was not fully informed when it reauthorized that suspect program

I’m convinced! DiFi has made the case! The program does not, because of the ample notice problems in the past, fulfill the standards which the 3 documents require it would need to meet to be legal.

But it might be if her Fake FISA Fix becomes law.

DiFi Fake FISA Fix Explicitly Allows Contractors to Conduct Suspicionless Searches on US Person Data

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The Senate Intelligence Committee has released its report on DiFi’s Fake FISA Fix. The report makes it clearer than ever that this is not at all an improvement, but rather an attempt to use the Snowden leaks as an opportunity to make the spying programs explicitly worse, which I’ll explain at more length later.

Just as an example, however, take a look at what they do with back door searches. As I explained here, the bill describes new reporting for a tiny fraction of back door searches, those that search on a US identifier as content, presumably to trick people in thinking that does anything for the vast majority of back door searches on US identifiers as metadata (DiFi’s staffers all but admitted that, anonymously, here). Thus, it provides new reports for a tiny fraction of this practice, while endorsing the vast majority of such searches — and the far more intrusive ones — to go on with no reporting requirements. And since I laid that out, NSA General Counsel Raj De and DNI General Counsel Robert Litt made it clear that NSA does not currently require even Reasonable Articulable Suspicion to search any content collected incidentally.

Here’s what the report adds to that, explicitly.

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.

The NSA just had a contractor walk off with unbelievable amounts of data.

And the Senate Intelligence Committee’s response to that is to explicitly give contractors the authority to conduct suspicionless searches through vast quantity of data to access and read the content of US person data, with no reporting requirements.

I guess when they named this the “intelligence” committee they were just making an elaborate joke.

(Note: Snoopdidoo had some more observations on the report in comments to this thread.)

In Which Ben Wittes Proves Ben Wittes Is NAKED

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160 days ago, Jim Sensenbrenner released a letter to Eric Holder expressing concern about the way DOJ had interpreted Section 215. In it, he did some creative editing to hide that he had had an opportunity to learn about that interpretation before he voted to reauthorize the PATRIOT Act.

160 days ago, I was (I believe) the first person to point out that obfuscation.

In those 160 days, I have also documented the serial lies and obfuscations of people like Keith Alexander, James Clapper, Robert Mueller, Mike Rogers, Valerie Caproni, Dianne Feinstein, Raj De, and Robert Litt. (one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three; trust me, this is just a quick survey). The most recent of these lies came last week when Raj De and Robert Litt claimed Congress had been fully informed about the authorities they were voting on, a claim which the Executive Branch’s own record proves to be false.

In spite of the clear imbalance between the lies NSA critics have told and those NSA apologists have told, Ben Wittes has made it a bit of a hobby to use Sensenbrenner’s single (egregious) lie to try to discredit NSA critics (without, of course, pointing out the serial, at times even more egregious, lies NSA apologists were telling). Of late, Wittes has harangued that, because he told a lie 160 days ago, Sensenbrenner is operating in bad faith when he criticizes NSA’s programs now. (See also this post.)

I have never questioned the good faith of Senators Patrick Leahy, Ron Wyden, or Rand Paul. They are legislators with a perspective. That’s how Congress works.

Rep. James Sensenbrenner is a different matter.

Since the bulk metadata program broke, the former chairman of the House Judiciary Committee has been on a campaign of denunciation of both agency activity under the Patriot Act—the law he helped write. And he has been denouncing the administration for having misled him about how Section 215 is being used too. He has done so with a breathtaking dishonesty that puts him in a different category from those members who have a policy dispute with the administration. [my emphasis]

Mind you, Wittes did not examine the content of Sensenbrenner’s more recent claims. Had he done so, he might have realized that the record supports Sensenbrenner’s complaints, even if the messenger for those complaints might be less than perfect.

It ignored restrictions painstakingly crafted by lawmakers and assumed a plenary authority never imagined by Congress. Worse, the NSA has cloaked its operations behind such a thick cloud of secrecy that, even if our trust was restored, Congress and the American people would lack the ability to verify it.

Note, we’re still learning the full extent of how the Executive Branch blew off limits placed on the PATRIOT authorities.

Wittes might even have noted Sensenbrenner’s apparent commitment to do his own job better.

“I hope that we have learned our lesson and that oversight will be a lot more vigorous,” Sensenbrenner said.

Even ignoring Wittes’ remarkable double standard, in which he suggests Sensenbrenner’s one lie should disqualify him from speaking on this topic forever while Clapper and Alexander’s seeming addiction to lies apparently shouldn’t even be mentioned in polite company, a highly regarded expert recently laid out new evidence for why Sensenbrenner has good reason to be angry, regardless of his role in passing PATRIOT in 2001 or 2006 or 2010 or even 2011.

The expert?

Ben Wittes.

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