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What Happened to Obama’s Ordered Restrictions on Back Door Searches?

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In the wake of yesterday’s PCLOB Report, Presidential Review Board Member Geoffrey Stone reminded that Obama’s hand-picked group recommended requiring warrants before accessing US person data collected via Section 702.

In effect, the Review Group recommended that backdoor searches for communications involving American citizens should be prohibited unless the government has probable cause and a warrant. This is essentially what the recently enacted House amendment endorsed.

The Review Group concluded that the situation under section 702 is distinguishable from the situation when the government lawfully intercepts a communication when it has probable cause and a warrant. This is so because, in the section 702 situation, the government is not required to have either probable cause or a warrant to intercept the communication. Because section 702 was not intended to enable the government to intercept the communications of American citizens, because our recommended reform would leave the government free to use section 702 to obtain the types of information it was designed and intended to acquire—the communications of non-U.S. citizens, and because the recommended reform would substantially reduce the temptation the government might otherwise have to use section 702 impermissibly in an effort intentionally to intercept the communications of American citizens, we concluded that this reform was both wise and essential.

But there’s a forgotten detail from ancient history of greater interest. Even the President ordered up changes for back door searches in criminal contexts.

Specifically, I am asking the Attorney General and DNI to institute reforms that place additional restrictions on government’s ability to retain, search, and use in criminal cases, communications between Americans and foreign citizens incidentally collected under Section 702.

Yet in spite of the fact the President asked the Attorney General and DNI to place additional restrictions on the government’s ability to keep, search, and use Section 702 collected information in criminal cases, here’s what we learned yesterday.

[A]lthough a communication must be “destroyed upon recognition” when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,531 in reality this rarely happens. Nor does such purging occur at the FBI or CIA: although their minimization procedures contain age-off requirements, those procedures do not require the purging of communications upon recognition that they involve U.S. persons but contain no foreign intelligence information.

[snip]

FBI requires that metadata queries, like content queries, be reasonably designed to return foreign intelligence or evidence of a crime. As noted above, however, the FBI does not separately track which of its queries involve U.S. person identifiers, and so the number of such metadata queries is not known.

As illustrated above, rules and oversight mechanisms are in place to prevent U.S. person queries from being abused for reasons other than searching for foreign intelligence or, in the FBI’s case, for evidence of a crime. In pursuit of the agencies’ legitimate missions, however, government analysts may use queries to digitally compile the entire body of communications that have been incidentally collected under Section 702 that involve a particular U.S. person’s email address, telephone number, or other identifier, with the exception that Internet communications acquired through upstream collection may not be queried using U.S. person identifiers.540 In addition, the manner in which the FBI is employing U.S. person queries, while subject to genuine efforts at executive branch oversight, is difficult to evaluate, as is the CIA’s use of metadata queries.

And the best estimate we’ve been given for how many of these FBI queries take places is a “substantial” amount.

It has been 6 months since the President ordered changes. And the FBI still can’t even count its US person queries, much less quantify them. PCLOB calls it “difficult to evaluate.”

Um, did James Clapper and Eric Holder just blow off the President’s order in January? Because it sure looks like FBI’s back door searches remain a relatively unregulated mess.

Jim Comey Wants to Generalize FBI’s Intelligence Collection

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In the 26th paragraph of a 32-paragraph article reporting on how FBI will remain terror terror terror under Jim Comey’s watch (albeit, potentially, with a more particularized focus, which would be welcome), this detail appears:

Mr. Comey said he also wanted to apply the lessons learned in fighting terrorism to fighting other crimes. If Congress approves, he plans to move the bureau’s head of intelligence out of the national security division and create a new intelligence branch that will amass information on crimes like fraud in an effort to more quickly identify trends and perpetrators.

I look forward to learning more about this proposal (and we shall see whether Congress permits Comey to make this move, though he is still Congress’ darling). Plus, it’s unclear whether “fraud” means the small-time fraud propagated by local businessmen or whether it’s the kind Jamie Dimon has gotten rich off of.

Still, it’s a much needed idea. While it poses the risk of expanding the use of intrusive intelligence tools, it also might lead us to establishing a better standard for the use of such intelligence.

Mike Rogers Aims to Criminalize One of the Main Things that Affords Journalists Protections: Getting Paid

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Remember DOJ’s efforts to placate journalists (rather stunningly, in retrospect, rolled out a month after the first Edward Snowden leaks)?

As I noted at the time, DOJ’s new protections for the press applied not to the act of journalism, but rather to members of the news media. DOJ’s own Domestic Investigations and Operations Guide requires institutional affiliation before they’ll treat someone as a journalist.

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

[snip]

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional. [my emphasis]

According to the DOJ, then, you have to get paid (preferably by an institution recognized to be a press) to be afforded heightened First Amendment protection as a journalist.

Except now House Intelligence Chair Mike Rogers wants to criminalize that — one of the main things that warrants you protection by DOJ as a journalist, getting paid — by calling it “fencing stolen material.”

REP. ROGERS: You — there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material — is that a crime?

DIRECTOR JAMES COMEY: Yes, it is.

REP. ROGERS: And would be selling the access of classified material that is stolen from the United States government — would that be a crime?

DIR. COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.

REP. ROGERS: So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?

[snip]

REP. ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?

DIR. COMEY: I think that’s a harder question because it involves a news-gathering functions — could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice.

REP. ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?

DIR. COMEY: I’m not sure I’m able to answer that question in the abstract.

REP. ROGERS: It’s something we ought to think about, is it not?

DIR. COMEY: Certainly.

So you’re not a journalist (and get no protections) if you don’t get paid. But if you do get paid, you’re fencing stolen property.

I do hope the traditional press recognizes the danger in this stance.

The FBI’s Improving Cooperation with FSB

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There were a number of questions about security threats to the Sochi Olympics at the Global Threat hearing the other day. One of them provided Jim Comey the opportunity to say this:

National Counterterrorism Center Director Matthew Olsen: So we’re very focused on the problem of terrorism in the run-up to the Olympics. I would add that I traveled to Sochi last December and met with Russian security officials. They understand the threat; they are very focused on this and devoting substantial resources. The biggest issue, from my perspective, is not the games themselves, the venues themselves; there is extensive security at those locations — the sites of the events. The greater threat is to softer targets in the greater Sochi area and in the outskirts, beyond Sochi, where there is a substantial potential for a terrorist attack.

Dianne Feinstein: Thank you very much. Mr. Comey, would you tell us what you can about cooperation between Russia and your organization?

FBI Director Jim Comey: Certainly, Senator. The cooperation between the FSB and the FBI in particular has been steadily improving over the last year. We’ve had exchanges at all levels, particularly in connection with Sochi, including me directly to my counterpart at FSB, and I think that we have a good level of cooperation there. It can always improve; we’re looking for ways to improve it, as are they, but this, as Director Olsen said, remains a big focus of the FBI. [my emphasis]

In the middle of a hearing at which James Clapper railed against Edward Snowden, claiming that counterintelligence threats — by which he largely meant Snowden — presented the second biggest threat to the country, the FBI Director stated that cooperation between his agency and the Russian spy agency has been improving for the last year (I’m guessing he means it has been improving since the Boston attack, because relations were quite chilly before that).

Snowden’s the second biggest threat to this country, and yet our relations with Russia, and specifically with Russia’s spy agency, have been steadily improving over the entire period Snowden has had asylum in Russia.

I don’t pretend to know precisely what that means.

At a minimum, it poses real questions about the unsubstantiated and whispered claims that Snowden has provided Russia great intelligence on NSA’s activities. After all, if Russia was busy exploiting Snowden’s secrets, it presumably would present challenges for this budding new cooperation between the FSB and those investigating Snowden’s leaks.

(The Global Threats report actually raises the case of Jeffrey Paul Delisle, a Canadian intelligence officer who gave Russia Five Eyes secrets for five years, as proof the Russians are soliciting more spies as part of its cyberwar efforts.)

There is, of course, another (remote) possibility: that we worked out a deal with Russia, whereby they’d give Snowden asylum and report back what he had taken. I have no reason to believe Snowden has shared secrets (though don’t doubt Putin will take whatever he can get his hands on), and the thought that Russia would agree to tell us what Snowden got is far-fetched. Still, Putin’s enough of a statist he might do it (and might misinform us along the way). While far-fetched, if that were the case, though, it’d give the US several things: the security in knowing Snowden was in the hands of security forces who would prevent any non-state or weaker states from getting to him, who were also limiting what Snowden could say publicly. Some clue about what Snowden had taken. And a political situation which would help US efforts to propagndize against Snowden.

Alternately, one of the things the FBI has learned as it has worked more closely with the FSB is that Snowden hasn’t shared any secrets with Russia (perhaps, as many have suggested, Russia got enough from Delisle that they would rather use Snowden solely to discomfit us).

I don’t know what it means. But I do find it rather implausible that the FBI would continue to expand cooperation with the FSB even as it extracted NSA’s family jewels from Snowden. Yet that’s the story Snowden’s biggest detractors would like you to believe.

When Judge Reggie Walton Disappeared the FBI Director: The Tell that FISC Wasn’t Following the Law

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SEN. MIKULSKI: General Clapper, there are 36 different legal opinions.

DIR. CLAPPER: I realize that.

SEN. MIKULSKI: Thirty-six say the program’s constitutional. Judge Leon said it’s not.

Thirty-six “legal opinions” have deemed the dragnet legal and constitutional, its defenders say defensively, over and over again.

But that’s not right — not by a long shot, as ACLU’s Brett Max Kaufman pointed out in a post yesterday. In its report, PCLOB confirmed what I first guessed 4 months ago: the FISA Court never got around to writing an opinion considering the legality or constitutionality of the dragnet until August 29, 2013.

FISC judges, on 33 occasions before then, signed off on the dragnet without bothering to give it comprehensive legal review.

Sure, after the program had been reauthorized 11 times, Reggie Walton considered the more narrow question of whether the program violates the Stored Communications Act (I suspect, but cannot yet prove, that the government presented that question because of concerns raised by DOJ IG Glenn Fine). But until Claire Eagan’s “strange” opinion in August, no judge considered in systematic fashion whether the dragnet was legal or constitutional.

And the thing is, I think FISC judge — now Presiding Judge — Reggie Walton realized around about 2009 what they had done. I think he realized the program didn’t fit the statute.

Consider a key problem with the dragnet — another one I discussed before PCLOB (though I was not the first or only one to do so). The wrong agency is using it.

Section 215 does not authorize the NSA to acquire anything at all. Instead, it permits the FBI to obtain records for use in its own investigations. If our surveillance programs are to be governed by law, this clear congressional determination about which federal agency should obtain these records must be followed.

Section 215 expressly allows only the FBI to acquire records and other tangible things that are relevant to its foreign intelligence and counterterrorism investigations. Its text makes unmistakably clear the connection between this limitation and the overall design of the statute. Applications to the FISA court must be made by the director of the FBI or a subordinate. The records sought must be relevant to an authorized FBI investigation. Records produced in response to an order are to be “made available to,” “obtained” by, and “received by” the FBI. The Attorney General is directed to adopt minimization procedures governing the FBI’s retention and dissemination of the records it obtains pursuant to an order. Before granting a Section 215 application, the FISA court must find that the application enumerates the minimization procedures that the FBI will follow in handling the records it obtains. [my emphasis, footnotes removed]

The Executive convinced the FISA Court, over and over and over, to approve collection for NSA’s use using a law authorizing collection only by FBI.

Which is why I wanted to point out something else Walton cleaned up in 2009, along with watchlists of 3,000 Americans who had not received First Amendment Review. Judge Reggie Walton disappeared the FBI Director.

>>>Poof!<<<

Gone.

The structure of all the dragnet orders released so far (save Eagan’s opinion) follow a similar general structure:

  • An (unnumbered, unlettered) preamble paragraph describing that the FBI Director made a request
  • 3-4 paragraphs measuring the request against the statute, followed by some “wherefore” language
  • A number of paragraphs describing the order, consisting of the description of the phone records required, followed by 2 minimization paragraphs, the first pertaining to FBI and,
  • The second paragraph introducing minimization procedures for NSA, followed by a larger number of lettered paragraphs describing the treatment of the records and queries (this section got quite long during the 2009 period when Walton was trying to clean up the dragnet and remains longer to this day because of the DOJ oversight Walton required)

Here’s how the first three paragraphs looked in the first order and (best as I can tell) the next 11 orders, including Walton’s first order in December 2008:

An application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, the Court finds that:

1. The Director of the FBI is authorized to make an application for an order requiring the production of any tangible thing for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861 (c)(1)]

2. The tangible things to be produced are all call-detail records or “telephone metadata” created by [the telecoms]. Telephone metadata includes …

[snip]

3. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12,333 to protect against international terrorism, … [my emphasis]

Here’s how the next order and all (released) following orders start [save the bracketed language, which is unique to this order]:

An verified application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. § 1861, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, [as well as the government’s filings in Docket Number BR 08-13 (the prior renewal of the above-captioned matter),] the Court finds that:

1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, …

That is, Walton took out the paragraph — which he indicated in his opinion 3 months earlier derived from the statutory language at 50 U.S.C. § 1861 (c)(1) — pertaining to the FBI Director. The paragraph always fudged the issue anyway, as it doesn’t discuss the FBI Director’s authority to obtain this for the NSA. Nevertheless, Walton seems to have found that discussion unnecessary or unhelpful.

Walton’s March 5, 2009 order and all others since have just 3 statutory paragraphs, which basically say:

  1. The tangible things are relevant to authorized FBI investigations conducted under EO 12333 — Walton cites 50 USC 1861 (c)(1) here
  2. The tangible things could be obtained by a subpoena duces tecum (50 USC 1861 (c)(2)(D)
  3. The application includes an enumeration of minimization procedures — Walton doesn’t cite statute in this May 5, 2009 order, but later orders would cite 50 USC 1861 (c)(1) again

Here’s what 50 USC 1861 (c)(1), in its entirety, says:

(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

And here are two key parts of subsections (a) and (b) — in addition to “relevant” language that has always been included in the dragnet orders.

(a) Application for order; conduct of investigation generally

(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things

[snip]

(2) shall include—

[snip]

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

FBI … FBI … FBI.

The language incorporated in 50 USC 1861 (c)(1) that has always been cited as the standard judges must follow emphasizes the FBI repeatedly (PCLOB laid out that fact at length in their analysis of the program). And even Reggie Walton once admitted that fact.

And then, following his lead, FISC stopped mentioning that in its statutory analysis altogether.

Eagan didn’t even consider that language in her “strange” opinion, not even when citing the passages (here, pertaining to minimization) of Section 215 that directly mention the FBI.

Section 215 of the USA PATRIOT Act created a statutory framework, the various parts of which are designed to ensure not only that the government has access to the information it needs for authorized investigations, but also that there are protections and prohibitions in place to safeguard U.S. person information. It requires the government to demonstrate, among other things, that there is “an investigation to obtain foreign intelligence information … to [in this case] protect against international terrorism,” 50 U.S.C. § 1861(a)(1); that investigations of U.S. persons are “not conducted solely upon the basis of activities protected by the first amendment to the Constitution,” id.; that the investigation is “conducted under guidelines approved by the Attorney General under Executive Order 12333,” id. § 1861(a)(2); that there is “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to the investigation, id. § 1861(b)(2)(A);14 that there are adequate minimization procedures “applicable to the retention and dissemination” of the information requested, id. § 1861(b)(2)(B); and, that only the production of such things that could be “obtained with a subpoena duces tecum” or “any other order issued by a court of the United States directing the production of records” may be ordered, id. § 1861(c)(2)(D), see infra Part III.a. (discussing Section 2703(d) of the Stored Communications Act). If the Court determines that the government has met the requirements of Section 215, it shall enter an ex parte order compelling production.

This Court must verify that each statutory provision is satisfied before issuing the requested Orders. For example, even if the Court finds that the records requested are relevant to an investigation, it may not authorize the production if the minimization procedures are insufficient. Under Section 215, minimization procedures are “specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1861(g)(2)(A)

Reggie Walton disappeared the FBI Director as a statutory requirement (he retained that preamble paragraph, the nod to authorized FBI investigations, and the perfunctory paragraph on minimization of data provided from NSA to FBI) on March 5, 2009, and he has never been heard from in discussions of the FISC again.

Now I can imagine someone like Steven Bradbury making an argument that so long as the FBI Director actually signed the application, and so long as the FBI had minimization procedures for the as few as 16 tips they receive from the program in a given year, it was all good to use an FBI statute to let the NSA collect a dragnet potentially incorporating all the phone records of all Americans. I can imagine Bradbury pointing to the passive construction of that “things to be made available” language and suggest so long as there were minimization procedures about FBI receipt somewhere, the fact that the order underlying that passive voice was directed at the telecoms didn’t matter. That would be a patently dishonest argument, but not one I’d put beyond a hack like Bradbury.

The thing is, no one has made it. Not Malcolm Howard in the first order authorizing the dragnet, not DOJ in its request for that order (indeed, as PCLOB pointed out, the application relied heavily on Keith Alexander’s declaration about how the data would be used). The closest anyone has come is the white paper written last year that emphasizes the relevance to FBI investigations.

But no one I know of has affirmatively argued that it’s cool to use an FBI statute for the NSA. In the face of all the evidence that the dragnet has not helped the FBI thwart a single plot — maybe hasn’t even helped the FBI catch one Somali-American donating less than $10,000 to al-Shabaab, as they’ve been crowing for months — FBI Director Jim Comey has stated to Congress that the dragnet is useful to the FBI primarily for agility (though the record doesn’t back Comey’s claim).

Which leaves us with the only conclusion that makes sense given the Executive’s failure to prove it is useful at all: it’s not the FBI that uses it, it’s NSA. They don’t want to tell us how the NSA uses it, in part, because we’ll realize all their reassurances about protections for Americans fall flat for the millions of Americans who are 3 degrees away from a potential suspect.

But they also don’t want to admit that it’s the NSA that uses it, because then it’ll become far more clear how patently illegal this program has been from the start.

Better to just disappear the FBI Director and hope no one starts investigating the disappearance.

Jim Comey: For FBI, Section 215 Only Provides Agility

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In yesterday’s Threat Hearing, James Clapper and John Brennan provided so much news early, I suspect many didn’t stick around to hear the question Angus King posed to Jim Comey. He asked about the significance of the phone dragnet.

SEN. KING: Director Comey, do you have views on the significance of 215? You understand this is not easy for this committee. The public is very skeptical and in order for us to continue to maintain it, we have to be convinced that it is in fact effective and not just something that the intelligence community thinks is something nice to have in their toolkit.

DIR. COMEY: Yeah, I totally understand people’s concerns and questions about them. They’re reasonable questions. I believe it’s a useful tool. For the FBI, its primary value is agility. That is, it allows us to do in minutes what would otherwise take us in hours. And I’ll explain what I mean by that. If a terrorist is identified in the United States or something blows up in the United States, we want to understand, OK, is there a network that we’re facing here?

And we take any telephone numbers connected to that terrorist, to that attack. And what I would do in the absence of 215 is use the legal process that we use every day, either grand jury subpoenas or national security letters, and by subpoenaing each of the telephone companies I would assemble a picture of whether there’s a network connected to that terrorist. That would take hours.

What this tool allows us to do is do that in minutes. Now, in most circumstances, the difference between hours and minutes isn’t going to be material except when it matters most. And so it’s a useful tool to me because of the agility it offers. [my emphasis]

Comey prefaced his entire answer by making it clear he was only addressing the way the FBI uses the dragnet. That suggests he was bracketing off his answer from possible other uses, notably by NSA.

If the FBI Director brackets off such an answer after 7 months of NSA pointing to FBI’s efforts to thwart plots, to suggest his Agency’s use may not be the most important use of the dragnet, can we stop talking about plots thwarted and get an explanation what role the dragnet really plays?

That said, it’s worth comparing Comey’s answer to what the PCLOB said about FBI’s use of the dragnet. Because in the 5 cases the government cited claiming the dragnet found particular leads (the exception is Basaaly Moalin, which PCLOB said might have been found via active investigations FBI already had going), FBI found the same leads via other means (and the implication for some of these is that FBI found those other leads first).

Operation WiFi: Those numbers simply mirrored information about telephone connections that the FBI developed independently using other authorities.

[snip]

David Headley: Those numbers, however, only corroborated data about telephone calls that the FBI obtained independently through other authorities.

[snip]

3 other cases: But in all three cases, that information simply mirrored or corroborated intelligence that the FBI obtained independently through other means.

That is, usually the dragnet isn’t even a matter of agility. It’s a matter of redundancy.

It seems Jim Comey, sharing the dais with several colleagues who’ve already torched their credibility, had no interest in pretending the dragnet is primarily about the investigations of his Agency.

Perhaps the rest of the us can dispense with that myth too now?

Former Presiding Judge, John Bates, Makes Compelling Case to Eliminate FISA Court

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As you read John Bates’ “comments” about the NSA Review Group’s recommendations, it’s worth keeping two things in mind about him:

  • He has a history of dismissing legally important cases out of caution — arguably excess caution — over getting involved in matters reserved for the political branches, a caution he did not exercise here.
  • In August 2011, after Bates asked NSA to tell him how many entirely domestic communications were being caught via upstream collection (and after Bates had told NSA domestic collection of US person data was only illegal if they acknowledged it), they did not provide the number. And he didn’t make them. He did however, in the same exchange, rubber stamp NSA’s authority to conduct back door searches into US person communications.

In other words, Bates has long been overly solicitous of Executive power, and contrary to some claims, his work on the FISC actually reinforces, rather than refutes, claims that the Court is a rubber stamp.

Perhaps it’s not surprising, then, that his comments actually make a fairly compelling — albeit unintentional — case for eliminating the FISC (at least for all its expanded uses since 2001) altogether.

Don’t get me wrong. I’m sympathetic to some of Bates’ stated concerns. The concerns about workload (which Bates raises in his first and second bullets, but relegates to his last paragraphs) are real, and have been recognized by a number of people in the FISC debate. Bates points to some real constitutional issues in constructing an advocate for the court (which, again, have been pointed out, with potential solutions, by others).

But ultimately Bates’ comments (which may also reflect the concerns of Chief Justice John Roberts, whose authority he invokes in commenting on FISC matters) object to anything that might make FISC more of a … court.

Consider his argument against a Special Advocate. He worries a special advocate would harm what he (the same guy who couldn’t get the government to divulge how many Americans are getting swept up in domestic upstream collection) claims is candor.

Perhaps most troubling, however, is our concern that providing an institutional opponent to FISA applications would alter the process in other ways that would be detrimnetal to the FISC’s timely receipt of full and accurate information. As noted above, the current process benefits from the government’s taking on — and generally abiding by — a heightened duty of candor to the Court. Providing for an adversarial process in run-of-the-mill, fact-driven cases may erode this norm of governmental behavior, thereby impeding the Court’s receipt of relevant facts. (As noted above, the advocate would rarely, if ever, serve as a separate source of factual information.) Instead, intelligence agencies may become reluctant to voluntarily provide to the Court highly sensitive information, or information detrimental to a case, because doing so would also disclose that information to a permanent bureaucratic adversary.

Even setting aside the number of times I’ve been able to find factual problems with claims made in the few FISC filings so far released (suggesting advocates could provide factual and technical details the government doesn’t want to), this is a tacit admission that the FISC is not considered a bureaucratic adversary by the government.

This is particularly troubling given that, as Bates portrays the process, the “FISC may request or receive information from the applicant informally through the legal staff” (which according to Judge Walton’s portrayal of the process, means via the phone). The only paper trail of the process, then, are (again relying in part on Walton) the written analysis of the FISC’s staff attorneys. Which would mean an advocate would require “broad access” to these “draft decisions and memoranda from legal staff,” would would violate “ethical canons and separation-of-powers principles,” in turn “infring[ing] on the independence of the judges’ decisionmaking.”

One reason Bates objects to a Special Advocate, then, is that the Government would have to write all its requests down, which might affect their candor.

If that isn’t already troubling, Bates’ observation that “even relatively routine national security investigations involve changing facts” raises additional concerns. Bates describes FISC judges making decisions on a sometimes undocumented set of moving facts, facts which the targets of such surveillance have never been permitted to see, much less challenge, in court.

Then there’s Bates’ stated worries about the problems an advocate would present for the FISA Court of Review (and again, some of this may reflect John Roberts’ concern, as SCOTUS is the ultimate court of appeal). Some of this, again, reflects resource concerns. But even those resource concerns — such as the possibility the FISCR would have “to hire its own staff” reveals that the FISCR relies on the same staffers who drive FISC decisions in the first place. It is not, as it turns out, an independent court of its own.

Which makes the Constitutional concerns raised by the wacky decisions of the FISC, starting with its secret redefinition of “relevance” (without even benefit of independent dictionary definitions), all the more urgent. There is no standing to challenge these issues outside of the courts; with the FISC structure, there is apparently no fully independent court of appeal. And the Chief Justice wants to keep it that way.

Which means part of what Bates is defending is the authority for a bunch of District Court Judges to serve as Appellate Judges for some of the most Constitutionally novel issues raised by national security.

Yet Bates also seems to be defending the Court’s ability to remain ignorant about some things the Executive does. He rejects any proposal to serve as an oversight check on the Executive (this is another concern I have some sympathy for). But he does so in a document including this disclosure raised in objection to requiring warrants to conduct back door searches. (Snoopdido noted this passage last night.)

Decisions about querying Section 702 information are now made within the Executive Branch. As a result, the Courts do not know how often the government performs queries of data previously acquired under Section 702 in order to retrieve information about a particular U.S. person. It seems likely to us, however, that the practice would be common for U.S. persons suspected of activities of foreign intelligence interest, e.g., engaging in international terrorism, so that the burden on the FISC of entertaining this new kind of application could be substantial.

Remember: Bates is the guy who first approved NSA and CIA’s use of these back door searches (relying in part on the prior 3-year history of FBI’s use of them). But he has apparently never gotten enough “candor” from the Executive — either before or after he approved this — to know how and how often the Executive is using these searches!

Then he goes on to explain that the Executive might need to use back door searches to get the content of Americans they can’t otherwise target under FISA.

For a variety of reasons, a U.S. person suspected of such activity may not otherwise be a FISA target. For example, there may be probable cause to believe that a U.S. person is engaged in international terrorism, but intelligence agencies may not have the ability to implement current forms of FISA collection against that person because of the person’s location or lack of information about particular facilities.

Granted, what Bates is describing is the use of reverse targeting to get around technical difficulties, not legal ones (though I wonder how he’s sure about the legal case if the government has never made it).

But it is reverse targeting, the use of a back door search to get to the US person content, without a warrant, via collection on another target. This is forbidden by the law. Yet he describes it as one reason why the FISC shouldn’t get involved in reviewing warrants for this kind of search, which (as he describes it) violates the law.

Against the background of admitting that the FISC doesn’t always require the government to write down its requests and that it doesn’t want to approve warrants for activity that by his description violates the statute because the government should be permitted to continue violating the statute, Bates then objects to the recommendations to eliminate bulk collection and provide more review of 215 and NSLs, in part because of the burdens they’d pose for the Court. Most curiously, Bates says that if reforms eliminated NSL gag orders, the government would begin to use Section 215.

Those changes would like result in the government’s decreasing its reliance on NSLs for records subject to such a disclosure requirement and instead bringing to the FISC more applications under Section [215] for production of such records, in order to avoid disclosure of such information to private parties.

If the government could still get bulk Section 215 orders, I agree, they might well use those instead.

But Jim Comey — to the extent he can be believed in comments that were clearly misleading — said he’d end up using grand jury subpoenas instead. So a guy with years of involvement in prosecuting terrorism cases at least claims that he not only could — but would prefer to — use grand jury subpoenas for this information over the FISC.

Which would alleviate the need to routinely eliminate gags, because review in any criminal proceedings would provide the kind of transparency and review necessary for such things (this is a point Peter Swire made in yesterday’s hearing).

The reason we need a FISC is because the government — often through inadequate notice to defendants — has succeeded in avoiding the kind of review courts normally bring. But John Bates reveals a number of ways in which the court that is supposed to be providing that review has failed to do so. And Jim Comey, at least, thinks some of this could move back to real courts.

So why not? Why not move this, with all the gags grand jury subpoenas get and the national security experience judges have acquired over the last decade and all the normal constitutionally required review process, back to normal Title III Courts?

I admit it. Bates makes an excellent case for eliminating the FISC case, at least for all the exotic bulk programs the government has been inventing in secret.

When FBI Director Jim Comey Ate 20 Journalists for Lunch, NSL Edition

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Yesterday, charismatic FBI Director Jim Comey had what was alternately described as a “lunchtime interview” and a “roundtable” with a bunch of journalists. (See NYT, ABC, AFP, NPR, McClatchy, HuffPo, LAT, WSJ, Politico, AP)

Where he proceeded to eat them for lunch.

While he addressed many topics, it appears one of his key goals was to lobby to keep National Security Letter authority as is rather than adopt the NSA Review Group’s recommended changes.

Here’s how Politico described it (I don’t mean to pick on Josh Gerstein; his was one of the most thorough reports of what Comey said, even in spite of writing one of the single bylined stories; the outlets above all published some version of this story.)

“The national security letter is not only among the most highly regulated things the FBI does, but a very important building block tool of our national security investigations,” Comey said. “What worries me about their suggestion that we impose a judicial procedure on NSLs, is that it would actually make it harder for us to do national security investigations than bank fraud investigations.”

Comey said applying to a judge for a letter to track down an internet user who made a post indicating an interest in carrying out a terrorist bombing would take days or perhaps weeks, even if more judges were added to the court.

“Being able to do it in a reasonably expeditious way is really important to our investigations. So one of my worries about the proposal in the review group is it would add or introduce a delay,” he said. The director did say he believed there was merit to the review panel’s suggestion that such national security letters not come with a permanent bar on the recipient discussing the order with anyone other than legal counsel.

“We ought to be able to work something out that adopts a nondisclosure regime that is more acceptable to a broader array of folks than the one we have now,” he said.

Comey acknowledged that the FBI process for issuing such letters was too lax several years ago, but insisted it has since been fixed and is now rigorous and heavily audited. “No doubt the process for NSLs was broken in some ways six years ago or longer. It is not broken today. And so I don’t know why we would make natioanls [sic] security investigations harder in that respect than criminal investigations,” he said. He also said doing so would likely encourage his agents to go through prosecutors to get a grand jury subpoena instead—a process that doesn’t require the same number of approvals. [my emphasis]

Here’s the problem with this (aside from the hilarious claims that a program with no external oversight is the most “highly regulated” thing the FBI does, as bolded).

The journalists all, without an exception I’ve found, permitted Comey to misrepresent the Review Group’s two recommendations pertaining to National Security Letters (though HuffPo did include additional reporting noting that two of the Review Group members were Comey’s law professors and he thinks their emphasis is on gag orders preventing recipients from discussing the orders).

I described what the Review Group’s NSL recommendations were here (Julian Sanchez also did a good post).

But to understand why this is important enough for me to be an asshole over, it helps to see Review Group Recommendation 1, affecting the Section 215 dragnet, next to Review Group Recommendation 2, affecting NSLs.

Recommendation 1

We recommend that section 215 should be amended to authorize the Foreign Intelligence Surveillance Court to issue a section 215 order compelling a third party to disclose otherwise private information about particular individuals only if [it  finds that

(1)] the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

 

Recommendation 2

We recommend that statutes that authorize the issuance of National Security Letters should be amended to permit the issuance of National Security Letters only upon a judicial finding that:

(1) the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation intended to protect “against international terrorism or clandestine intelligence activities” and

(2) like a subpoena, the order is reasonable in focus, scope, and breadth.

[punctuation and spacing altered in brackets]

That is, Recommendation 1 (affecting Section 215) and Recommendation 2 (affecting NSLs) are — in the clauses changing the standard of review to eliminate bulk collection — substantively exactly the same. And while the NSLs require judicial review to get to any enforceable of standard of review — which is definitely one huge proposed change to the NSLs — viewed together like this, it is clear that at least as significant a goal of the Review Group is to end bulk collection under any authority.

Particularly when you consider Recommendation 3, which recommends real minimization procedures for NSLs.

The Review Group recommended judicial review of NSLs, sure. But it also recommended either preventing or (given the likelihood this has been going on) eliminating  bulk collection.

And yet a room full of — in some cases — very good journalists allowed the FBI Director to criticize what they all reported as the Review Group’s recommendation that NSL’s undergo judicial review without even mentioning he misrepresented the recommendation, addressing only a fraction of what the Review Group recommended.

Read more →

Maybe Jim Comey Killed Off the Nation’s Premier Law Enforcement Agency?

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Update: The change went into effect on July 1, 2013, so before Comey’s coronation.

I’ve been tracking the FBI’s embrace of its national security/intelligence role (with a consequent inattention to bank crimes, in particular) for years — notably with this post on its self-congratulation a decade after 9/11. (See also this post, this post, and this one.)

So regular readers will be unsurprised by Foreign Policy’s report that the FBI’s boilerplate fact sheet now hails its primary function to be national security.

But quietly and without notice, the agency has finally decided to make it official in one of its organizational fact sheets. Instead of declaring “law enforcement” as its “primary function,” as it has for years, the FBI fact sheet now lists “national security” as its chief mission. The changes largely reflect the FBI reforms put in place after September 11, 2001, which some have criticized for de-prioritizing law enforcement activities. Regardless, with the 9/11 attacks more than a decade in the past, the timing of the edits is baffling some FBI-watchers.

But I am a bit interested in the question FP goes onto ask: when did this happen. It appears to have happened during the summer.

“What happened in the last year that changed?” asked Kel McClanahan, a Washington-based national security lawyer.

McClanahan noticed the change last month while reviewing a Freedom of Information Act (FOIA) request from the agency. The FBI fact sheet accompanies every FOIA response and highlights a variety of facts about the agency. After noticing the change, McClanahan reviewed his records and saw that the revised fact sheets began going out this summer. “I think they’re trying to rebrand,” he said. “So many good things happen to your agency when you tie it to national security.”

What FP doesn’t answer is why this happened.

But one possibility is the arrival of Jim Comey.

Comey didn’t take over as FBI DIrector until September 4, 2013. But his confirmation hearing (more of a coronation, really) was on July 9; his confirmation vote was on July 29. So he had plenty of time to complete the FBI’s rebranding as a domestic spy agency rather than its premier domestic law enforcement agency before he officially took over.

I checked his confirmation hearing coronation, to see if he announced this rebranding. I’ve been unable to find a formal statement (!!). And while later in the hearing he talked about balancing the intelligence side with the law enforcement side (the FBI itself emphasized this part of the hearing), what apparently extemporaneous statement he did give focused on the FBI’s transition under Robert Mueller to an intelligence agency. (This is my transcription of the non-family part, which took up half of the statement; it starts around 42:30.)

If I’m confirmed for this position I will follow a great American, one who has been clear-eyed about the threat facing our country, especially the metastasizing terrorist threat, the cyber-threat, that poses a risk to our secrets, to our commerce, to our people, and most ominously, to the networks we depend upon as our lifeblood. I know he has changed the FBI, as the Chairman and the Ranking Member described, in fundamental and crucial ways. I know that this will be a hard job. I’m sure that things will go wrong and I will make mistakes. What I pledge to you though is to follow Bob Mueller’s example of staring hard at those mistakes, learning from those mistakes, and getting better as a result of those mistakes. His legacy of candor and straight-forwardness and integrity is one that I pledge to continue. I also know that the FBI is and must be an independent entity in the life of America. It cannot be associated with any party or any interest or any group. It has to be seen as the good guys and good gals in this country. The FBI is and must be about finding the facts and only the facts in a fair, thorough, and objective way, and to do that with a rock-solid commitment to our Constitution and to our laws. That culture of commitment to law and resistance to any jeopardy of independence is at the core of the FBI. I know it is deep inside FBI Agents. Those values are the things that I love about the FBI.

It wouldn’t be surprising that a guy with roots in NY who was prosecuting terrorism even before 9/11 would adopt this focus. Nor do I, thus far, have reason to believe he won’t be better at going after banksters than Mueller was (and Obama has finally shifted some focus to it).

But I do hope — given his appeal to independence — he realizes that making the FBI a domestic intelligence agency does make the FBI a partisan institution, because it de-emphasizes a threat every bit as serious as terrorists and cybercriminals: the banksters.

Fat Al Gore Menaces the Homeland and Homeland Security Experts Don’t Care

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Six days ago, Fat Al Gore (my shorthand for climate change) attacked the Philippines, killing as many 10,000 and leaving 250,000 homeless.

It was Fat Al Gore’s most successful attack thus far.

With Fat Al Gore’s growing success in mind, consider these data points.

Senate Homeland Security Committee doesn’t recognize Fat Al Gore as a threat

The Senate Homeland Security Committee is holding a hearing on “Threats to the Homeland.” It is focused almost entirely on what witnesses describe a dispersed Al Qaeda threat (which doesn’t have the ability to attack in the US), self-radicalized extremists who don’t have the ability to conduct large-scale attacks, and cybersecurity (though Carl Levin did bring up corporate anonymity as a threat, and Republicans brought up Benghazi, which isn’t the “Homeland” at all; also, Ron Johnson leaked that Secret Service officers have proven unable to keep their dick in their pants in 17 countries).

None of the three witnesses even mentioned climate change in their testimony.

Obama’s Chief of Staff threatened to “kill” Steven Chu for admitting islands would disappear because of climate change

Meanwhile, the lead anecdote of this mostly interesting (but in parts obviously bullshit) profile of how Obama disempowered his cabinet ministers tells how Rahm went ballistic because Steven Chu (whose energy initiative created a bunch of jobs) publicly admitted that some islands will disappear because of climate change.

In April 2009, Chu joined Obama’s entourage for one of the administration’s first overseas trips, to Trinidad and Tobago for a Summit of the Americas focused on economic development. Chu was not scheduled to address the media, but reporters kept bugging Josh Earnest, a young staffer, who sheepishly approached his boss, White House press secretary Robert Gibbs, with the ask. “No way,” Gibbs told him.

“Come on,” Earnest said. “The guy came all the way down here. Why don’t we just have him talk about all the stuff he’s doing?”

Gibbs reluctantly assented. Then Chu took the podium to tell the tiny island nation that it might soon, sorry to say, be underwater—which not only insulted the good people of Trinidad and Tobago but also raised the climate issue at a time when the White House wanted the economy, and the economy only, on the front burner. “I think the Caribbean countries face rising oceans, and they face increase in the severity of hurricanes,” Chu said. “This is something that is very, very scary to all of us. … The island states … some of them will disappear.”

Earnest slunk backstage. “OK, we’ll never do that again,” he said as Gibbs glared. A phone rang. It was White House chief of staff Rahm Emanuel calling Messina to snarl, “If you don’t kill [Chu], I’m going to.”

Much later the story notes that Heather Zichal is on her way out too.

Even blue-chip West Wingers such as economic adviser Gene Sperling and climate czar Heather Zichal are heading for the exits.

Washington insiders applaud fracking while ignoring climate change

Meanwhile, also as part of its big new magazine spread, Politico has two related pieces on DC insiders views.

There’s this “Real Game Changers” piece capturing the “big forces they see shaking up U.S. politics.” David Petraeus talks about “the ongoing energy revolution in the U.S.” Jeb Bush promises, “With natural gas as an exponentially growing source, we can re-industrialize.” And while several thinkers describe the problem of economic inequality, only Al Gore talks about Fat Al Gore.

Carbon pollution from burning fossil fuels is changing our climate and transforming our world. From more destructive and more frequent climate-related extreme weather events, floods and droughts, melting ice and rising sea levels, to climate refugees, crop failure, higher asthma rates and water scarcity, the consequences are profound. As citizens, we’re already paying the high costs. Billions of dollars to clean up after extreme weather events. Rising insurance bills. Lives lost.

Meanwhile, former respectable energy historian turned shill Daniel Yergin congratulates America on being almost energy independent.

Here’s his only mention of the word “climate.”

In a major climate speech this past June, he declared, “We should strengthen our position as the top natural gas producer because, in the medium term at least, it not only can provide safe, cheap power, but it can also help reduce our carbon emissions.”

Yes, we’re going to fight climate change by burning carbon (gas) instead of carbon (coal).

To be fair to the DC elite, the reason we’re embracing fracking is to give ourselves space to ditch the terrorist funding Saudis. So there is a real national security purpose to it.

But of course, it’s a purpose that addresses a far less urgent threat than that terrorist Fat Al Gore, who just killed 10,000 people.