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Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

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Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

Why Would Don McGahn (and His Lawyer) Cooperate in a Piece Claiming He Cooperated with Mueller (on Obstruction)?

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As I laid out here, the latest NYT obstruct-a-palooza on Don McGahn “cooperating” with Robert Mueller spins what is probably a lawyer covering his own legal jeopardy with a claim of full cooperation.

But why did he (and his lawyer, William Burck) cooperate in it? Why spin a fanciful tale of being disloyal to your boss, even if it’s just to blame him for it before he blames you?

The most obvious answer is he’s trying to convince Mueller he’s not responsible for the legal shenanigans of (as the NYT continues to spin it) the obstruction of the investigation, or of the legal shenanigans of Trump generally.

There may well be an aspect of that, though I wouldn’t want to be (and hope I’m not) in a position where my legal jeopardy relied on how successfully I could spin Maggie and Mike, even if I were as expert at doing so as Don McGahn is.

A better answer may lie in this observation from my last post:

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Consider: the story Maggie and Mike (and Don McGahn’s lawyer) spin is that Don McGahn let Trump bully him around on some issues in early 2017, which led to some things that might look like obstruction of justice. An unfortunate occurrence, surely. But McGahn might be forgiven for fucking things up in early January 2017. After all, he was new to the whole White House Counseling thing; he had never worked in a White House before. Beginner’s mistake(s), you might call the long list of things he fucked up at the beginning of his tenure, which Maggie and Mike nod to but don’t describe in full resplendent glory.

His relationship with the president had soured as Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.

Don McGahn’s skills, it turns out, lie elsewhere.

While he has bolloxed most of the things White House Counsels are supposed to do (like keeping the White House out of legal and ethical trouble), he has had unsurpassed success at stacking the courts. I doubt there’s an ideological Republican in the country who isn’t thrilled with McGahn’s success at stacking the courts.

Update: Case in point.

Indeed (this becomes important in just a bit), McGahn’s success at stacking the courts is one of the biggest reasons why Republicans in Congress put up with the rest of Trump’s shit. Being President, for many Republicans, isn’t about governing; it’s about stacking the courts.

It turns out, though, that McGahn had another job before he became an expert court-stacker. For decades, Don McGahn has been one of the Republican party’s key campaign finance lawyers.

That’s how he grew to be close to Trump when, as Maggie and Mike describe,

McGahn joined the Trump team as an early hire said to like the candidate’s outsider position.

Don McGahn had come to prominence in the party at the NRCC and was rewarded for it with a seat on the FEC, where he made campaign finance more slushy.

But probably not slushy enough.

Here’s where Maggie and Mike’s failure to get an answer for whether longtime Republican campaign finance expert Don McGahn has been questioned about his role in the conspiracy with Russians to win the election (not to mention their failure to pin down when his third interview with Mueller’s team took place, after he happily revealed when the first two did) becomes important.

Don McGahn might be forgiven for bolloxing up the White House Counsel job. He was new at that (and he was busy, anyway, stacking the courts).

But at least three of the areas where Mueller’s team might find a conspiracy with Russia (or other foreigners) to win the election involve campaign finance issues — Don McGahn’s expertise. Those are:

  • Whether knowingly employing British Cambridge Analytica employees without getting them proper visas constitutes illegal foreign influence?
  • Whether accepting a Trump Tower meeting with Russians offering dirt on Hillary Clinton constitutes accepting a thing of value?
  • Whether the campaign was sufficiently firewalled from the  dodgy shit Roger Stone was doing (which has been a focus of the last six months of Mueller’s time)?

My wildarse guess is that campaign finance expert Don McGahn might find a way to finesse hiring foreign Cambridge Analytica employees. My wildarse guess is that campaign finance expert Don McGahn could claim ignorance about the illegal details of the Trump Tower and other foreign influence peddling meetings.

My wildarse guess is that campaign finance expert Don McGahn did not sufficiently firewall Stone off from the campaign. Especially given that he was involved in both incarnations of Stop the Steal — the effort to stamp down a convention rebellion, and the effort (which worked in parallel to a Russian one) to use claims of a “rigged” election to suppress Democratic voters. Especially given that he was loved in the Republican party for leaning towards slush over legal compliance.

Given how central campaign finance violations are in any question of a conspiracy with Russia, it is malpractice for Maggie and Mike to publish a story without determining whether — after being grilled by Mueller’s team for two days last fall about whether he fucked up White House Counseling — McGahn has more recently been grilled extensively about whether he fucked up campaign finance, the thing he got hired for in the first place. The thing he’s supposed to be an expert in.

But Maggie and Mike believe Trump is only being investigated for obstruction, so seeding a big puff piece with them is a sure bet you won’t get asked about your obviously central role (or not) in any conspiracy involving campaign finance.

That’s just part of a potential explanation for why Don McGahn (and his lawyer) would seed a big puff piece with Maggie and Mike, making it look like McGahn had cooperated a lot on something he was never an expert in — White House Counseling — but remaining utterly silent on whether he cooperated on something he is undoubtedly an expert in (even if he tends to prefer slush to law). Better to get in trouble for cooperating on the stuff Trump and his lawyers have been successfully distracting with for the last six months rather than cooperating with prosecutors on a case about conspiring with Russian spies to win an election, the stuff that will elicit cries of Treason and with it badly tarnish the Republican party.

Then there’s this, the last great court-stack. Numerous people have noted, but Maggie and Mike did not, even while noting that McGahn is in the middle of a SCOTUS fight:

Mr. McGahn is still the White House counsel, shepherding the president’s second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

William Burck, McGahn’s lawyer, is his partner-in-crime in his last great court-stack.

When Trump (presumably based on the advice of his chief court-stacker, Don McGahn) nominated Brett Kavanaugh to the Supreme Court, people (including Mitch McConnell) warned him of the danger of nominating someone with such an extensive paper record. Nevertheless, Republicans started with an assumption that that record would be made public. Until July 24, when Republicans had a private meeting and realized they had to suppress Kavanaugh’s record as White House Staff Secretary.

It is not surprising then, that on July 19, 2018, while discussing preparations for Judge Kavanaugh’s confirmation hearing, Senator Cornyn — the Majority Whip and a senior member of the Judiciary Committee — said that the production of documents Judge Kavanaugh had “generated . . . authored…or contributed to” during his tenure as White House Staff Secretary should be produced to the Committee.  He stated that it “just seems to be common sense.”

However, less than a week later, following a White House meeting with you on the records production on July 24, the Republican position abruptly and inexplicably shifted.  Since that meeting, Senate Republicans refused to request any and all documents from Judge Kavanaugh’s three years as White House Staff Secretary, regardless of authorship.  Immediately after the meeting, Senator Cornyn described requesting any Staff Secretary records as “a bridge too far.”  Days later, Chairman Chuck Grassley submitted a records request to the National Archives and Records Administration (NARA) and omitted any of Judge Kavanaugh’s records as Staff Secretary.

Since then, William Burck has taken time away from representing Don McGahn and Reince Priebus and Steve Bannon to personally suppress lots of Kavanaugh’s records as White House Staff Secretary. And Chuck Grassley has moved up Kavanaugh’s confirmation process to make sure that some of production being slow-rolled by Don McGahn’s lawyer will not be release before Kavanaugh gets a vote on a lifetime appointment.

There’s clearly something in Kavanaugh’s record as White House Staff Secretary that might lead Susan Collins or Lisa Murkowski to vote against Kavanaugh — or make the entire nomination toxic in time for the mid-terms.

Mind you, whether Don McGahn’s failures on the topic he is supposed to be an expert on, campaign finance, contribute to getting the President’s lackeys indicted for a conspiracy may not directly relate to his last great hurrah in stacking the courts, solidifying a regressive majority on SCOTUS for a generation and with it adding someone who will suppress this investigation.

Then again it might.

Most Republicans, I suspect, will one day become willing to jettison Trump so long as they can continue stacking the courts. Trump, one day, may be expendable so long as McGahn’s expertise at stacking the court holds sway. At that level, McGahn’s political fortunes may actually conflict with Trump’s.

But not if he (and his lawyer) fuck up the last great court-stack. Not if they get blamed for failing on McGahn’s area of expertise — campaign finance — and in so doing lead to a delay in and with it the demise of the Kavanaugh confirmation.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

 

Graphic: Quino Al via Unsplash (mod by Rayne)

Three Things: Call, Call, Call!

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[As always, note the byline — this isn’t Marcy’s post. / ~Rayne]

Dial (202) 224-3121.

If you don’t already have this number memorized or logged as a contact, have it tattooed on your body where you can see it. Afraid of needles? Use henna for a temporary tattoo. You’re going to need this number until Congress breaks before the mid-term elections.

~ 3 ~

The White House’s occupant was supposed to announce today the nominee to replace Justice Anthony Kennedy. Call your senators and tell them to refuse to hold hearings on this nomination.

If they are GOP, tell them it’s too close to the mid-term elections and the people deserve to have a say — in short, use the same argument Mitch “Turtlehead” McConnell used when he refused to hold a Judiciary Committee hearing to approve President Obama’s nominee, Merrick Garland.

If your senator(s) are Democrats or Independents, tell them they must deny a president who is under investigation any nominee to a lifetime seat as long as there is a cloud over the presidency. If they cannot fend off a Judiciary Committee hearing, insist they do not vote for any nominee who seeks to overturn Roe v. Wade. Nor should they confirm a justice who will not recuse themselves from any case against Trump or his campaign arising from Department of Justice investigations, nor should they approve a justice who believes the president is in any way above the law, immune in ways the public is not.

I’ve come to resist The Hill as it has become ridiculously biased, but this op-ed is worth a read: The ‘McConnell Rule’ is law, and Senate Democrats should sue to enforce it.

Live by Turtlehead’s rule, die by it.

Need a script for your calls? See Celeste Pewter at this link.

~ 2 ~

Your next call is again to your senators, this time on the nomination of Brian Benczkowski to the Department of Justice as Assistant Attorney General.

Senator Dick Durbin has already been working on this:

Read the letter’s text and the rest of his comments on Twitter at this link. Benczkowski’s nomination should be withdrawn; it is little more than another form of obstruction of justice.

This is another poisonous nomination; just as a president under investigation shouldn’t be permitted to appoint justices, neither should he be able to appoint nominees to the Justice Department with such serious conflicts related to the same investigation. Benckowski’s nomination is simply corrupt.

~ 1 ~

WHERE ARE THE CHILDREN?

Not the Thai students who’ve been trapped in cave but the thousands of children from infants to teens who have been separated from their asylum-seeking parents for no legal reason apart from institutionalized terror in the form of human trafficking.

The lack of a means to trace children as they were placed in camps, foster homes, gods know where else is a clear indication of intention: this administration meant for these children to be lost to their parents. This administration did not want to be held accountable by any tracking.

As I’ve said before, it’s criminal. Media shouldn’t expend one lick more time on scum like Alan Dershowitz (like The New York Times’ allocation of six journalists to his obstructionist ass) and instead should be hounding the government to find and unite these children with their parents, documenting application of immigration and asylum laws, and reporting on the creation of concentration camps (that’s exactly what they are).

Call your representatives in both houses of Congress and demand a legislative fix — Rep. Nadler’s Keep Families Together Act (HR 6135) and Sen. Schumer’s call for a Reunification Czar — to bar the executive branch from separating families. I also want to bar the use of military resources for this purpose.

See Celeste Pewter at this link if you need more overview and a script for calling.

Some of the children are being reunited under court order — like this one-year-old who appeared before a judge, alone — but if the government never had a plan in place to track children separated from families, how do we know all the children will be reunited?

~ 0 ~

Every Monday seems considerably worse, but I’m not going to face them on my knees. Instead I will be contacting Congress. What about you?

Chris Wray’s DodgeBall and Trump’s Latest Threats

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Though I lived-tweeted it, I never wrote up Christopher Wray’s confirmation hearing to become FBI Director. Given the implicit and explicit threats against prosecutorial independence Trump made in this interview, the Senate should hold off on Wray’s confirmation until it gets far more explicit answers to some key questions.

Trump assails judicial independence

The NYT interview is full of Trump’s attacks on prosecutorial independence.

It started when Trump suggested (perhaps at the prompting of Michael Schmidt) that Comey only briefed Trump on the Christopher Steele dossier so he could gain leverage over the President.

Later, Trump called Sessions’ recusal “unfair” to the President.

He then attacked Rod Rosenstein by suggesting the Deputy Attorney General (who, Ryan Reilly pointed out, is from Bethesda) must be a Democrat because he’s from Baltimore.

Note NYT goes off the record (note the dashed line) with Trump in his discussions about Rosenstein at least twice (including for his response to whether it was Sessions’ fault or Rosenstein’s that Mueller got appointed), and NYT’s reporters seemingly don’t think to point out to the President that he appeared to suggest he had no involvement in picking DOJ’s #2, which would seem to be crazy news if true.

Finally, Trump suggested (as he has elsewhere) Acting FBI Director Andrew McCabe is pro-Clinton.

Having attacked all the people who are currently or who have led the investigation into him (elsewhere in the interview, though, Trump claims he’s not under investigation), Trump then suggested that FBI Directors report directly to the President. In that context, he mentioned there’ll soon be a new FBI Director.

In other words, this mostly softball interview (though Peter Baker made repeated efforts to get Trump to explain the emails setting up the June 9, 2016 meeting) served as a largely unfettered opportunity for Trump to take aim at every major DOJ official and at the concept of all prosecutorial independence. And in that same interview, he intimated that the reporting requirements with Christopher Wray — who got nominated, ostensibly, because Comey usurped the chain of command requiring him to report to Loretta Lynch — would amount to Wray reporting directly to Trump.

Rosenstein does what he says Comey should be fired for

Close to the same time this interview was being released, Fox News released an “exclusive” interview with Rod Rosenstein, one of two guys who acceded to the firing of Jim Comey ostensibly because the FBI Director made inappropriate comments about an investigation. In it, the guy overseeing Mueller’s investigation into (in part) whether Trump’s firing of Comey amounted to obstruction of justice, Rosenstein suggested Comey acted improperly in releasing the memos that led to Mueller’s appointment.

And he had tough words when asked about Comey’s recent admission that he used a friend at Columbia University to get a memo he penned on a discussion with Trump leaked to The New York Times.

“As a general proposition, you have to understand the Department of Justice. We take confidentiality seriously, so when we have memoranda about our ongoing matters, we have an obligation to keep that confidential,” Rosenstein said.

Asked if he would prohibit releasing memos on a discussion with the president, he said, “As a general position, I think it is quite clear. It’s what we were taught, all of us as prosecutors and agents.”

While Rosenstein went on to defend his appointment of Mueller (and DOJ’s reinstatement of asset forfeitures), he appears to have no clue that he undermined his act even as he defended it.

Christopher Wray’s dodge ball

Which brings me to Wray’s confirmation hearing.

In fact, there were some bright spots in Christopher Wray’s confirmation hearing, mostly in its last dregs. For example, Dick Durbin noted that DOJ used to investigate white collar crime, but then stopped. Wray suggested DOJ had lost its stomach for such things, hinting that he might “rectify” that.

Similarly, with the last questions of the hearing Mazie Hirono got the most important question about the process of Wray’s hiring answered, getting Wray to explain that only appropriate people (Trump, Don McGahn, Reince Priebus, Mike Pence) were in his two White House interviews.

But much of the rest of the hearing alternated between Wray’s obviously well-rehearsed promises he would never be pressured to shut down an investigation, alternating with a series of dodged questions. Those dodges included:

  • What he did with the 2003 torture memo (dodge 1)
  • Whether 702 should have more protections (dodge 2)
  • Why did Trump fire Comey (dodge 3)
  • To what extent the Fourth Amendment applies to undocumented people in the US (dodge 4)
  • What we should do about junk science (dodge 5)
  • Whether Don Jr should have taken a meeting with someone promising Russian government help to get Trump elected (dodge 6)
  • Whether Lindsey Graham had fairly summarized the lies Don Jr told about his June 9, 2016 meeting (dodge 7)
  • Can the President fire Robert Mueller (dodge 8)
  • Whether it was a good idea to form a joint cyber group with Russia (dodge 9)
  • The role of tech in terrorist recruitment (dodge 9 the second)
  • Whether FBI Agents had lost faith in Comey (dodge 10)
  • Who was in his White House interview — though this was nailed down in a Hirono follow up (dodge 11)

Now, don’t get me wrong, this kind of dodge ball is par for the course for executive branch nominees in this era of partisan bickering — it’s the safest way for someone who wants a job to avoid pissing anyone off.

But at this time of crisis, we can’t afford the same old dodge ball confirmation hearing.

Moreover, two of the these dodges are inexcusable, in my opinion. First, his non-responses on 702. That’s true, first of all, because if and when he is confirmed, he will have to jump into the reauthorization process right away, and those who want basic reforms let Wray off the hook on an issue they could have gotten commitments on. I also find it inexcusable because Wray plead ignorance about 702 even though he played a key role in (not) giving defendants discovery on Stellar Wind, and otherwise was read into Stellar Wind after 2004, meaning he knows generally how PRISM works. He’s not ignorant of PRISM, and given how much I know about 702, he shouldn’t be ignorant of that, either.

But the big one — the absolutely inexcusable non answer that would lead me to vote against him — is his claim not to know the law about whether the President can fire Robert Mueller himself.

Oh, sure, as FBI Director, Wray won’t be in the loop in any firing. But by not answering a question the answer to which most people watching the hearing had at least looked up, Wray avoided going on the record on an issue that could immediately put him at odds with Trump, the guy who thinks Wray should report directly to him.

Add to that the Committee’s failure to ask Wray two other questions I find pertinent (and his answers on David Passaro’s prosecution either revealed cynical deceit about his opposition to torture or lack of awareness of what really happened with that prosecution).

The first question Wray should have been asked (and I thought would have been by Al Franken, who instead asked no questions) is the circumstances surrounding Wray’s briefing of John Ashcroft about the CIA Leak investigation in 2003, including details on Ashcroft’s close associate Karl Rove’s role in exposing Valerie Plame’s identity.

Sure, at some level, Wray was just briefing his boss back in 2003 when he gave Ashcroft details he probably shouldn’t have. The fault was Ashcroft’s, not Wray’s. But being willing to give an inappropriate briefing in 2003 is a near parallel to where Comey found himself, being questioned directly by Trump on a matter which Trump shouldn’t have had access to. And asking Wray to explain his past actions is a far, far better indication of how he would act in the (near) future than his rehearsed assurances he can’t be pressured.

The other question I’d have loved Wray to get asked (though this is more obscure) is how, as Assistant Attorney General for the Criminal Division under Bush, he implemented the July 22, 2002 Jay Bybee memo permitting the sharing of grand jury information directly with the President and his top advisors without notifying the district court of that sharing. I’d have asked Wray this question because it was something he would have several years of direct involvement with (potentially even with the Plame investigation!), and it would serve as a very good stand-in for his willingness to give the White House an inappropriate glimpse into investigations implicating the White House.

There are plenty more questions (about torture and the Chiquita settlement, especially) I’d have liked Wray to answer.

But in spite of Wray’s many rehearsed assurances he won’t spike any investigation at the command of Donald Trump, he dodged (and was not asked) key questions that would have made him prove that with both explanations of his past actions and commitments about future actions.

Given Trump’s direct assault on prosecutorial independence, an assault he launched while clearly looking forward to having Wray in place instead of McCabe, the Senate should go back and get answers. Trump has suggested he thinks Wray will be different than Sessions, Rosenstein, Comey, and McCabe. And before confirming Wray, the Senate should find out whether Trump has a reason to believe that.

Update: I did not realize that between the time I started this while you were all asleep and the time I woke up in middle of the night Oz time SJC voted Wray out unanimously, which is a testament to the absolute dearth of oversight in the Senate.

Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

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Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.

As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.

That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.

And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

The bill defines “individuals whose communications were collected” this way:

(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.

Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.

I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.

Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.

So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.

But it’s not just the language in the bill that amounts to ratification of such a dragnet.

As the government has argued over and over and over, every time Congress passes Section 215’s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.

While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”

And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.

That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).

That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.

So Senators supporting this bill must realize that supporting the bill means they are supporting the following:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.

I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.

Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?

Cole: I may not need to collect everybody’s credit card records in order to do that.

[snip]

If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.

We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.

Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.

Patrick Leahy (202) 224-4242

Mike Lee (202) 224-5444

Dick Durbin (202) 224-2152

Dean Heller (202) 224-6244

Al Franken (202) 224-5641

Ted Cruz (202) 224-5922

Richard Blumenthal (202) 224-2823

Tom Udall (202) 224-6621

Chris Coons (202) 224-5042

Martin Heinrich (202) 224-5521

Ed Markey (202) 224-2742

Mazie Hirono (202) 224-6361

Amy Klobuchar (202) 224-3244

Sheldon Whitehouse (202) 224-2921

Chuck Schumer (202) 224-6542

Bernie Sanders (202) 224-5141

Cory Booker (202) 224-3224

Bob Menendez (202) 224-4744

Sherrod Brown (202) 224-2315

 

 

Dick Durbin’s Obscure Transparency Bid

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Steven Aftergood notes that the Senate Appropriations Committee has included a reporting requirement on NSA on its “bulk collection” programs.

That’s all well and good, if the language isn’t stripped before final passage. But there are a couple of limits to the language.

First, the reporting requirements on Section 215 only go back to 2009.

For the last 5 years, on an annual basis, the number of records acquired by NSA as part of the bulk telephone metadata program authorized by the Foreign Intelligence Surveillance Court, pursuant to section 215 of the USA PATRIOT Act, and the number of such records that have been reviewed by NSA personnel in response to a query of such records;

Of course, the program changed significantly in 2009; the collection scope may have narrowed at that point. And many of the abuses were ended in that year.

And there are two problems with the requirement to provide a list of all “bulk collection” programs.

A report, unclassified to the greatest extent possible, and with a classified annex if necessary, describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.

We know the intelligence community only includes programs that use no discriminator as “bulk collection.” So the report would list what the IC considers bulk collection, not what normal human beings do.

In addition, only NSA would have to report its bulk programs. We know, for example, that the FBI has a Pen Register program that presumably involves some bulk. That would not show up in this list.

So, great! Transparency!

But not transparency that will tell us what we need to know.

The Scandal of Lying about “Thwarted” “Plots” Started 4 Years Ago

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As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.

But they’re missing this real scandal about the government’s lies about the central importance of Section 215.

That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.

First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.

SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.

For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.

Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?

DIR. ALEXANDER: Yes.

SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?

DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).

SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]

Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).

MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.

 

That is, in fact, Inglis said it had been critical in just one “plot.”

After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.

MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —

SEN. LEAHY: It was a — it was a critical role?

MR. JOYCE: What I’m saying — what it plays a —

SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?

MR. JOYCE: Yes, there was some undercover work.

SEN. LEAHY: Yeah —

MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —

SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?

MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]

So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)

That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.

Read more →

Dianne Feinstein Suggests President Obama Personally Violating Our Treaty Obligations

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As I noted the other day, in her ruling that she could not halt the force-feeding at Gitmo, Gladys Kessler described the treatment as “degrading,” potentially invoking our obligations under Article 16 of the Convention again Torture to prevent degrading treatment. Kessler actually explicitly invoked International Covenant on Civil and Political Rights, which includes a similar prohibition on degrading treatment.

Dianne Feinstein and Dick Durbin sent Obama a letter yesterday, using Kessler’s ruling to connect the two explicitly.

U.S. District Court for the District of Columbia Judge Gladys Kessler also expressed concern about the force-feeding of Guantanamo Bay detainees. The Court denied detainee Jihad Dhiab’s motion for a preliminary injunction to stop force-feeding due to lack of jurisdiction, but in her order, Judge Kessler noted that Dhiab has set out in great detail in his court filings “what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits torture or cruel, inhumane, and degrading treatment.” The United States has ratified the ICCPR and is obligated to comply with its provisions. Judge Kessler also wrote, “it is perfectly clear from the statements of detainees, as well as the statements from the [medical] organizations just cited, that force-feeding is a painful, humiliating, and degrading process.” (emphasis added).

The judge concluded by correctly pointing out that you, as Commander in Chief, have the authority to intercede on behalf of Dhiab, and other similarly-situated detainees at Guantanamo. The court wrote: “Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the Army and Navy of the United States. …’ It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority—and power—to directly address the issue of force-feeding of the detainees at Guantanamo Bay.”

Feinstein only by association makes the next part of her argument. We comply with these treaties by complying with our Eighth Amendment prohibition on cruel or unusual punishment. And the government has long said that if we can do something elsewhere in a our gulag system, we can do it in Gitmo.

In a letter to Chuck Hagel last month — which Feinstein noted in yesterday’s letter but did not quote from — she laid out how our force-feeding at Gitmo differs from that used in the Bureau of Prisons.

In addition to the allegation that the Department of Defense’s force-feeding practices are out of sync with international norms, they also appear to deviate significantly from U.S. Bureau of Prison practices. Based on a review by Intelligence Committee staff, the significant differences between force-feedings at Guantanamo Bay and within the U.S. Bureau of Prisons relate to the manner in which the detainees are force-fed, how often detainees are force-fed, and the safeguards and oversight in place during force-feedings.

Within the Bureau of Prisons, force-feeding is exceedingly rare. The Intelligence Committee staff has been told that no inmate within the Bureau of Prisons has been force-fed in more than six months. When force-feedings do occur within the Bureau of Prisons, we have been told that nearly 95% of the time they are conducted with a fully compliant inmate requiring no restraints. At Guantanamo Bay, on the other hand, all detainees being force-fed–regardless of their level of cooperation–are placed in chairs where they are forcibly restrained. The visual impression is one of restraint: of arms, legs, and body. Further, at Guantanamo Bay, detainees are fed twice a day in this manner, potentially over a substantial period of time. This also is inconsistent with the practice of the U.S. Bureau of Prisons.

Additionally, the U.S. federal prison guidelines for force-feedings include several safeguards and oversight mechanisms that are not in place at Guantanamo Bay. These guidelines require the warden to notify a sentencing judge of the involuntary feeding, with background and an explanation of the reasons for involuntary feeding. Further, the Bureau of Prisons requires an individualized assessment of an inmate’s situation to guide how force-feedings are administered, a practice that I found largely absent at Guantanamo Bay. Finally, all force-feedings must be videotaped within the Bureau of Prisons.

It’s almost as if DiFi knows or suspects there’s an OLC memo that — parallel to the ones that found torture to be legal because it vaguely resembled practices elsewhere (as when they noted that members of the military undergo SERE training, so reverse-engineered SERE techniques used in different situations were legal) — finds our force-feeding at Gitmo to be legal because judges have approved the way we force-feed people in federal prisons. In any case, Gitmo officials have said their treatment is similar with BOP treatment.

Between these two letters, she has laid out why that is not the case. Indeed, that’s the import of Kessler’s language, a federal judge finding the treatment we use in Gitmo to violate our obligations under ICCPR.

Say what you will about DiFi (lord knows I’ve often said the same, where I thought it appropriate), but she has just told a President from her own party that he’s breaking the law.

NSA’s Querying of US Person Data, Take Two

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Update: Alexander’s office has conceded Udall and Wyden’s point about the classified inaccuracy. It also notes:

With respect to the second point raised in your 24 June 2013 letter, the fact sheet did not imply nor was it intended to imply “that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.”

He then cites two letters from James Clapper’s office which I don’t believe have been published.

Joshua Foust tries to refute this post and in doing so proves once again he doesn’t understand the meaning of “target” under Section 702.

Out of courtesy to him, I’m going to rewrite this post to help him understand it. The issue is not whether the US can “target” a US person without a warrant. They can’t. The issue is what the US does with US person data they collect incidentally off a legal target (which must be a foreigner overseas collected for a legitimate intelligence purpose).

At issue is this sentence in the Mark Udall/Ron Wyden letter to Keith Alexander.

Separately, this same fact sheet states that under Section 702, “Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime.” We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans.

The passage says that the claim, “any inadvertently acquired communication of or concerning a US person must be promptly destroyed” is “somewhat misleading,” for two reasons:

  1. It implies that the NSA has the ability to determine how many American communications it has collected under section 702
  2. It implies that the law does not allow the NSA to deliberately search for the records of particular Americans

Now, before I get into bullet point 2, which is the one in question, note that this entire passage is talking about “inadvertently acquired communication of or concerning a US person.” This is not information on someone who has been targeted. It discusses what happens to information collected along with the communications of those who’ve been targeted (say, by emailing the target). Therefore, this entire passage is irrelevant to the issue of what happens with the targeted person’s communication. The Udall/Wyden claim is not about targeting in the least; it is about incidental collection.

Okay, bullet point 2: Udall and Wyden claim that Alexander’s fact sheet is misleading because it implies the law does not allow the NSA to deliberately search for the records of particular Americans. They could be wrong, but their claim is that it is misleading for Alexander to suggest that the law does not allow the NSA to deliberately search for the records of particular Americans. That means they believe the law does allow the NSA to deliberately search for the records of particular Americans, otherwise they wouldn’t think his statement was misleading.

Now, if it were just Udall and Wyden making this claim, it’d be a he-said/he-said. But  pointed out that this claim is not new at all. It’s not even one limited to Udall and Wyden. In the FAA report released by Dianne Feinstein last year, it said,

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.

First, the report describes a debate the committee had:

The Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained.

The committee debated two things:

  1. Whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited.
  2. Whether querying information collected under Section 702 to find communications of a particular United States person should be more robustly constrained.

Bullet point 1 makes it clear they were debating whether they should prohibit this activity. If they had to consider that, it means that it is not prohibited (which is precisely what Udall and Wyden say–that the law allows it). Bullet point 2 says they also considered whether they should “more robustly constrain” it, which suggests (though does not prove) that it is going on now, otherwise there’d be nothing to constrain.

The IC IGs won’t tell us how much of this goes on–they claim they have no way of counting it, which ought to alarm you, because it says they’re not actually tracking it via some kind of auditing function.

I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.

Now, as I already laid out, what we’re talking about is not targeting a US person–focusing collection on that person. What we’re talking about is what you can do with the US person data collected “incidentally” with the communications collected of that targeted person. That information–as the minimization guidelines describe–is lawfully collected. The big question is what you can do with it once you have collected it, and in many but not all cases there are restrictions against circulating that information before you’ve hidden the identity of the US person in question.

The last part of the passage from the SSCI says,

With respect to analyzing the information lawfully collected under Section 702, however, the Intelligence Community provided several examples in which it might have a legitimate foreign intelligence need to conduct queries in order to analyze data already in its possession.

Again, some amount of US person data is collected under Section 702 along with the data of the targeted person (if it weren’t, they wouldn’t need minimization procedures). It is lawfully collected. The question is what you’re allowed to do with it. And as part of the debate the committee had about whether they were going to “prohibit” or “more robustly constrain” the querying of US person data that was lawfully collected as incidental data, SSCI describes the Intelligence Community (which includes, in part, the NSA, the CIA, and the FBI) providing several reasons why it might need to conduct queries of this data. And the committee agreed that these reasons were “legitimate foreign intelligence needs.”

The minimization procedures from 2009, at least, require destruction of US person data if it is “clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information).” (3(b)(1)) What is not immediately destroyed may be kept for up to 5 years. But it only destroys the stuff that is “clearly not relevant,” not data that might be relevant to the purpose of the investigation.

Now, while the language is not exact, the SSCI report’s description of data that has a “legitimate foreign intelligence” surely includes “foreign intelligence information.” This is kind of backwards (which may be part of complaint from Udall and Wyden), but unless the information is clearly not relevant — and the intelligence community says some of this data has legitimate intelligence purposes — then it is retained. This is probably why Udall and Wyden think Alexander’s “must be promptly destroyed” is misleading, because if the IC thinks they might need to query it because it would serve a legitimate foreign intelligence purpose, then it is not.

So who makes this decision whether to keep the data? “NSA analyst(s) will determine whether it … is reasonably believed to contain foreign intelligence information.” (3(b)(4)) The NSA, not FBI or CIA.

And this data cannot just be retained. It can also be “forwarded to analytic personnel responsible for producing intelligence information from the collected data.” (3(b)(2))

Now, in most cases, that information must be anonymized (which is what Kurt Eichenwald discusses here, which Foust cites). But it has always been the case there are exceptions to that rule. Some exceptions are if:

  • The Director of NSA specifically determines, in writing, that the communication is reasonably believed to contain significant foreign intelligence information. (5(1)) In that case the information goes to the FBI. [Update: This distribution is permitted with domestic communication–that is, US to US person.]
  • A recipient requiring the identity of such person for the performance of official duties needs the identity of the United States person to understand foreign intelligence information or assess its importance. (6(b)(2) This sometimes, but not always, happens after an initial distribution.

There are actually a slew more exceptions but these two should suffice. Again, these rules on distribution (except as they affect technical data base information, which might be relevant here, but not necessary) are not new with FAA. They’ve long been in place.

Again, this is all about what happens to incidentally collected data, not the data of the person actually targeted. Which is why these two passages are irrelevant to the entire point (the second of which Foust thought I was leaving out because it hurt my point).

As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause.

[snip]

The Department of Justice and Intelligence Community reaffirmed that any queries made of Section 702 data will be conducted in strict compliance with applicable guidelines and procedures and do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.

What they say is that the government is prohibited from targeting a US person without a warrant and that any other things done with incidentally collected data must be conducted in strict compliance with applicable guidelines, which are the minimization procedures I just reviewed (though again, those are from 2009 so they may have changed somewhat). The passage very clearly envisions making queries of the data and very clearly considers such queries to be distinct from the targeting of a US person.

And the minimization procedures make it clear that if data is not “clearly not foreign intelligence,” (that is, if it might be foreign intelligence, as this queried data is, according to the IC) then it is retained, at least through the initial (NSA-conducted) review. Where it can be queried, so long as the other minimization procedures are met.

One final thing. Foust is actually wrong when he suggests the IC asked for new authority (in any case, the only conclusion would be that they got it). Rather, in both the SSCI and the Senate Judiciary Committee, Senators tried to limit this authority. In SJC, Mike Lee,  Dick Durbin, and Chris Coons submitted an amendment to (among other things) prohibit,

the searching of the contents of communications acquired under this section [702] in an effort to find communications of a particular United States person…

…Except with an emergency authorization.

Dianne Feinstein fought the amendment by arguing such a prohibition would have made it harder to find Nidal Hasan (whom we didn’t find anyway, and whose communications with Anwar al-Awlaki may well have been traditional FISA collection). But at one level that makes sense.

Sheldon Whitehouse said that such a restriction would “kill this program.”

I may not like what Whitehouse stated. But I do trust his judgement about how central to this program is access to US person communications.

That doesn’t say how much of this stuff goes on (though it does seem to suggest it does). But it does say we ought to at least track it.

The Folks Who Brought You Military Detention in the NDAA Are Rewriting the AUMF

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Yesterday, the Senate Armed Services Committee announced a hearing to revisit the 2001 Authorization to Use Military Force. In addition to a bunch of DOD figures (but not the recently departed Jeh Johnson, the DOD-connected person who said the most interesting things about the AUMF), it’ll have (I’ve linked their most salient comments on the AUMF):

Rosa Brooks, Professor of Law, Georgetown University Law Center

Geoffrey Corn, Professor of Law, South Texas College of Law

Jack Goldsmith, Professor of Law, Harvard Law School

Kenneth Roth, Executive Director, Human Rights Watch

Charles Stimson, Manager, National Security Law Program, The Heritage Foundation

Curiously, John Bellinger who (as far as I understand) started the discussion of a new AUMF is not slated to testify. Also note that the Deputy Director of Special Operations for Counterterrorism will testify, but no one from CIA is scheduled to; while JSOC can operate under the President’s inherent authority, it likely prefers the legal cover of an AUMF (and therefore may be one of the entities pushing for an AUMF that matches reality on the ground).

Politico reports that this hearing is more than speculative: Levin and no-longer-SASC-Ranking-Member-but-he-might-as-well-be John McCain are planning to rewrite the AUMF, with help from Bob Corker, Dick Durbin, and Lindsey “all detainees must be military” Graham.

And if the inclusion of Graham in that group doesn’t scare you, remember that this crowd is substantively the same one that enshrined military detention in 2012’s NDAA. While that effort might be regarded as “reasonable” Carl Levin and John McCain’s attempt to present something more reasonable than House Armed Services Committee Buck McKeon was pushing for, and while the NDAA originally included exceptions for US citizens, in the event, the White House pushed Carl Levin to effectively rubber stamp its claims to unlimited authority, including detaining (or killing) US citizens.

And if that doesn’t have you worried enough about this effort, consider this quote, which mocks the contributions Rand Paul or Ted Cruz might make to this debate.

“Can you imagine what Paul or Cruz would do with this?” said one top Democratic aide. “It could be a disaster. And it would be worse in the House.”

As a threshold matter, a top aide who can’t distinguish between Paul’s more heartfelt libertarianism from Cruz’ authoritarianism pretending to be libertarianism is a concern. But to call the influence of both as “a disaster” is troubling.

Ultimately, though, what is likely to happen with this debate is that all players will be unwilling to discuss openly what we’ve actually been doing in the name of war against al Qaeda, up to and including waging war in the “homeland.”  That’s one thing the 2001 AUMF was written to exclude. And I can almost guarantee you, it’s an authority the President — and the top Democratic aides who mock Rand Paul — will want to preserve.