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DOJ Changed Its FISA Disclosure Policy on January 10, 2008

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While wandering through FBI’s Domestic Investigations and Operations Guide today, I realized that on January 10, 2008, DOJ changed its FISA use policy (at PDF 104) . In a memo announcing the new policy, Ken Wainstein explained that “this revised policy includes significant changes from current practice that will streamline the process for using FISA information in certain basic investigative processes, while still ensuring that important intelligence and law enforcement interests are protected.”

It then lists 4 (entirely redacted) investigative processes for which FISA information could be used.

While I’m sure this letter has been reported in the past, it has far greater significance given several newly disclosed facts.

First, just days earlier, Attorney General Michael Mukasey reversed existing policy by permitting NSA to contact chain on US person data in EO 12333-collected information. That decision would make it far easier to identify existing communications implicating Americans.

Even more importantly, this move took place just weeks before the government revamped the PRISM program, such that FBI had a much more central role in the process and obtained selected PRISM material directly. In effect, Mukasey made it easier to use FISA information just weeks before FBI started getting a lot more of it, and getting it directly.

This change adds to the already significant evidence that the FBI started back door searches on PRISM information with that change in January 2008.

It’s interesting, too, that FBI had already decided to make these changes before Colleen Kollar-Kotelly ruled the initial Protect America Act certifications met the statute on January 15, 2008. There’s growing evidence that DOJ long planned to involve FBI more centrally, but waited on her decision (and the day the PAA was originally scheduled to expire) to roll out the change formally.

One more critical detail: The letter indicated that the new policy would be tied to a new interpretation of information “derived from” FISA.

The revised policy requires that it be reviewed one year from its effective date and requires NSD to issue guidance on what constitutes information “derived from” FISA collections by March 31, 2008.

Note that that initial annual review date would mean Bush’s DOJ would conduct such a review in the last days before Obama came in.

In any case, the redacted parts of this letter are probably, arguably, unclassified and FOIAble at this point, since PCLOB has revealed that FBI uses its back door searches for assessments.

Eric Holder Resigns, Will Likely Go Back to Representing Banks at Covington and Burling

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As we speak, Chuck Schumer is probably yelling into a phone trying to get President Obama to nominate Wall Street’s US Attorney Preet Bharara to succeed Eric Holder as Attorney General. “Barahck,” Schumer is probably yelling, “I can get Mitch to agree to push Preet through in the Lame Duck.”

That’s because Holder has just announced his resignation, pending confirmation of his successor.

The three most interesting details in Carrie Johnson’s scoop on Holder’s resignation are that he is likely to return to Covington and Burling, where — like former Criminal Division Chief Lanny Breuer before him — he will represent banks as they craft sweetheart deals with DOJ.

Friends and former colleagues say Holder has made no decisions about his next professional perch, but they say it would be no surprise if he returned to the law firm Covington & Burling, where he spent years representing corporate clients.

Nice to know a guy can still profit off of 6 years of overlooking rampant bank crime.

Johnson also reported that Holder plans to push through racial profiling guidelines that will protect African Americans but not Muslims.

Long-awaited racial profiling guidelines for federal agents will be released soon, too. Those guidelines will make clear that sexual orientation, ethnicity and religion are not legitimate bases for law enforcement suspicion, but controversial mapping of certain communities — including Muslim Americans — would still be allowed for national security investigations, one of the sources said.

That will soil the one real bright spot of Holder’s tenure at DOJ, his fight for civil rights.

Finally, Johnson reported that Don Verrilli — the guy who seemed to, but did not quite — lose the ObamaCare fight is the leading candidate to replace Holder.

The sources say a leading candidate for that job is Solicitor General Don Verrilli, the administration’s top representative to the Supreme Court and a lawyer whose judgment and discretion are prized in both DOJ and the White House.

By “judgement and discretion,” I wonder whether Johnson’s sources are referring to Verrilli’s stubbornness in not correcting the lies he told SCOTUS (wittingly or unwittingly) about DOJ’s implementation of FISA Amendments Act in the Amnesty v. Clapper case. By claiming, falsely, that DOJ gives defendants notice that they’ve been caught using Section 702, Verrilli successfully beat back the Justices’ concerns that no one would ever have standing to challenge these laws.

For what it’s worth, I think people are vastly overestimating the time it will take to replace Holder. After all, Republicans are on the record that they believe Holder to be contemptuous of Congress. While the House GOP that is suing him don’t actually get a vote on his replacement, surely they’ll convince their proxy Ted Cruz to represent their contempt.

Thus, for the right candidate, I suspect confirmation will happen quickly, just as Caroline Krass got confirmed in a landslide when the costs of leaving Robert Eatinger — who referred CIA’s overseers to DOJ for investigation — in place as Acting CIA General Counsel became clear.

I’m just not convinced Verrilli is that guy. And while Preet did lead the investigation into Alberto Gonzales’ politicization of the US Attorneys when he worked for Schumer, surely the GOP cares more about his diligent efforts to not investigate the banks in the interim.

Garr King’s Speculative FISA Ruling

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Garr King, the judge in Mohamed Osman Mohamud’s case, has refused Mohamud’s demand for broad discovery into the government’s failure to notice him about the Section 702 surveillance they used to bust him.

Before I get into the substance of King’s ruling, take a look at how King dismisses the reporting–almost exclusively from NYT’s Charlie Savage–about how, upon having lied to SCOTUS, Solicitor General Don Verrilli pushed to change DOJ’s policy on notice about Section 702. Here’s King:

Defendant bases his argument, in part, on events concerning Clapper, 133 S. Ct. 1138. The Solicitor General argued to the Court that the government provided notice to defendants when evidence was derived from § 1881a surveillance. Plaintiffs had not received such notice, so the Court ruled plaintiffs had no standing to challenge the constitutionality of the FAA. Id. at 1143, 1148. Newspapers began to speculate about an internal Justice Department debate on providing notice in these circumstances. Defendant received his Supplemental Notification thereafter. [my emphasis]

That is, King dismisses clear evidence of DOJ misconduct by claiming the reporter — Savage — was just speculating.

Here’s the reporting King bases that “speculate” claim on:

Prosecutors plan to inform the defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.

[snip]

In February, the Supreme Court dismissed a case challenging its constitutionality because the plaintiffs, led by Amnesty International, could not prove they had been wiretapped. Mr. Verrilli had told the justices that someone else would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 law.

But it turned out that Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.

 [snip]

Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

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12 Years Later, DOJ Is Still Struggling Through Dragnet Discovery Issues

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As I noted earlier, Charlie Savage describes how, after Don Verrilli made false representations to the Supreme Court about whether defendants get an opportunity to challenge FISA Amendments Act derived evidence, it set off a discussion in DOJ about their discovery obligations.

Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

In national security cases involving orders issued under the Foreign Intelligence Surveillance Act of 1978, or FISA, prosecutors alert defendants only that some evidence derives from a FISA wiretap, but not details like whether there had just been one order or a chain of several. Only judges see those details.

After the 2008 law, that generic approach meant that prosecutors did not disclose when some traditional FISA wiretap orders had been obtained using information gathered through the warrantless wiretapping program. Division officials believed it would have to disclose the use of that program only if it introduced a recorded phone call or intercepted e-mail gathered directly from the program — and for five years, they avoided doing so.

For Mr. Verrilli, that raised a more fundamental question: was there any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search? [my emphasis]

It’s not entirely true that only judges learn if there are a series of orders leading up to a traditional FISA that incriminates a person. For example, we know it took 11 dockets and multiple orders to establish probable cause to wiretap Basaaly Moalin, the one person allegedly caught using Section 215. We also know there was a 2-month delay between the time they identified his calls with (probably) Somali warlord Aden Ayrow and the time they started wiretapping him under traditional FISA. Even before that point, Ayrow would have been — and almost certainly was — a legal FISA Amendments Act target. Meaning it’d be very easy for the government to watch Moalin’s side of their conversations in those two months to develop probable cause — or even to go back and read historical conversations (note, Ken Wainstein may have signed some of the declarations in question, which would make a lot of sense if they took place during the transition between Attorneys General earlier in 2007).

But Moalin’s attorneys didn’t — and still haven’t — learned whether that’s what happened. (Note, I’m overdue to lay out the filings in the case since I last covered it; consider it pending.)

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Dianne Feinstein Didn’t Mean to Mislead the Senate into Extending FAA, Promise!

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Charlie Savage has a story describing how, after Solicitor General Don Verrilli got caught lying to SCOTUS about whether defendants busted using FISA Amendments Act would have the opportunity to challenge it in court, DOJ has now decided to adopt a different standard for disclosure of such information.

National security lawyers and a policy advisory committee of senior United States attorneys focused on operational worries: Disclosure risked alerting foreign targets that their communications were being monitored, so intelligence agencies might become reluctant to share information with law enforcement officials that could become a problem in a later trial.

But Mr. Verrilli argued that withholding disclosure from defendants could not be justified legally, officials said. Lawyers with several agencies — including the Federal Bureau of Investigation, the N.S.A. and the office of the director of national intelligence — concurred, officials said, and the division changed the practice going forward.

I’ll return to the import of this debate later.

As part of the story, Savage describes why Adel Daoud, who had been named by Dianne Feinstein last year during the FAA reauthorization debate, won’t get access to any wiretapping information, at least not from her. He links to court documents in which the Senate’s lawyer, Morgan Frankel, claims they don’t have to turn over anything under Speech and Debate, but that in any case, DiFi never meant to suggest FAA had identified the terrorists whose cases she invoked to scare the Senate into reauthorizing FAA.

Here’s what she said (the underlined comments were cited by Frankel):

There is a view by some that this country no longer needs to fear attack. I don’t share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America that have been made between 2009 and 2012. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests [sic] come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

[lists 9 of the 16 arrests, including Daoud’s]

So I believe the FISA Amendments Act is important and these cases show the program has worked. As the years go on, I believe good intelligence is the most important way to prevent future attacks.

Information gained through programs such as this one — and through other sources as well — is able to be used to prevent future attacks. So, in the past 4 years, there have been 100 arrests to prevent something from happening in the United States, some of these plots have been thwarted because of this program.

And here’s how the Senate Legal Counsel Morgan Frankel dismissed these claims.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated,

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Why Should We Believe Solicitors General about Warrantless Wiretapping

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I’m working on a longer post about the arguments in Amnesty v. Clapper today.

But I wanted to point to this passage from the transcript, in which Solicitor General Don Verrilli responded to Justice Ginsburg’s suggestion that the FISA Court didn’t exercise very rigorous oversight, given that it had only ever rejected one application.

JUSTICE GINSBURG: Is there much of a speculation involved in how — I think it’s only one time, and it was under the pre-amended statute, that the FISA court ever turned down an application

GENERAL VERRILLI: Yes, but that, Your Honor, is, I think, not a fair assessment of the process. It’s really very much an iterative process in which there’s a dialogue between the executive branch and the FISA court in which the court can demand more information, raise objections. Those get worked out, and then there’s a final order.

So I don’t think it’s fair to infer from the fact that there’s only one rejection that this — that it’s a process that isn’t rigorous.

But there was evidence in the court room today to show how false such assurances are.

You see, Ted Olson was in the room. He was there to argue a copyright case heard just after Amensty v. Clapper. And as I have noted before, the government actually sent Olson–back when he was Solicitor General–to argue before the FISA Court of Review without disclosing the warrantless wiretapping program to him. He made a number of claims about how “lawful” the government’s activities were when, in fact, they weren’t.

Given that the government has lied to FISCR before, and given that Solicitors General apparently don’t get briefed on what the government does with warrantless wiretapping, is there any reason we should believe this Solicitor General about the FISA Court’s oversight?