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Amash-Conyers Fails 205-217

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In one of the closest votes in a long time for civil liberties, the Amash-Conyers amendment just failed, but only barely, by a vote of 205-217.

The debate was lively, with Mike Rogers, Michele Bachmann, and Iraq verteran Tom Cotton spoke against the amendment; Amash closely managed time to include a broad mix of Democrats and Republicans.

The only nasty point of the debate came when Mike Rogers (R-MI) suggested Justin Amash (R-MI) was leading this charge for Facebook likes.

Update: Here’s the roll call.

Mike Rogers: IRS Scandal Is Real, NSA Scandal Is Not; AP Collection Is a Dragnet, Section 215 Collection Is Not

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One of the four members of Congress with greatest influence over this country’s “intelligence,” House Intelligence Chair Mike Rogers, claims that the IRS scandal is real and the risk of NSA dragnet is not.

Rogers said Amash’s amendment, which stops the NSA from collecting data under the Patriot Act, was an attempt to take advantage of anger over recent scandals including the Internal Revenue Service’s targeting of conservative groups applying for tax exempt status and the Justice Department’s probe of Associated Press journalists in connection to a leak about a thwarted terrorist plot that originated in Yemen.

“It’s certainly inflammatory and certainly misleading,” Rogers said Wednesday in an interview on Michigan radio station WTKG 1230. “I think, he tried to take advantage at any rate of people’s anger of the IRS scandal, which is real, and the AP —Associated Press dragnet by the Attorney General, Benghazi —all of those things are very real and there’s no oversight function “What they’re talking about doing is turning off a program that after 9/11 we realized we missed —we the intelligence community- missed a huge clue.” [my emphasis]

Note, too, that Rogers calls the (completely inappropriate) collection of the phone records for 20 AP phone lines a “dragnet,” but somehow doesn’t think the collection of the phone records for every single American is also a dragnet.

Again, this dude plays a significant role in this country’s “intelligence.”

From there, Rogers declined into outright misinformation.

Rogers added that NSA’s telephone data collection program has helped thwart over 50 terrorist plots.

The Section 215 collection — the only thing that would be affected by the Amash-Conyers amendment — has had a role in (per Keith Alexander’s latest claims) 13 plots.

Not 50.

13.

I can’t think of a better way for Mike Rogers to demonstrate that these programs have insufficient oversight — in which the Intelligence Committees play a crucial role — than to open his yap and make such ludicrous statements.

“Section 215 Is Silent”

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Justin Amash has a useful fact sheet on the Amash-Conyers amendment that would defund dragnet 215 collection. (If you haven’t yet called your Congressperson and told her to support the amendment, please do so!)

As a whole, the fact sheet clears up some misconceptions about the amendment, making it clear, for example, that the amendment only returns the meaning of Section 215 to the intent Congress had when it first passed.

Given that the fact sheet — dated today — appears to post-date yesterday’s TS/SCI briefing by Keith Alexander and James Clapper, I am particularly interested in these two sentences.

The administration has not provided a public explanation as to how the telephone records of all Americans are “relevant” to a national security investigation.  Similarly, Sec. 215 is silent as to how the government may use these records once it has obtained them.

The language seems to suggest the Administration has provided a classified explanation as to how phone records became “relevant to” a massive terrorism investigation.

More interestingly, the next sentence points to the Administration’s silence about how the government can use this dragnet collection.

That’s a concern I’ve long had. After all, only FISA Court minimization might, with very strict language, prevent the National Counterterrorism Center from simply copying the dragnet database and data mining it with abandon. And so I find it interesting that a document released after yesterday’s TS/SCI hearing mentions the possibility the government does something with it beyond what they’ve stated publicly.

If this were a Ron Wyden statement, I’d take it as a big hint. I’m not sure it is meant as such here, but it does heighten my concerns that this data is circulated far more widely than the government has admitted.

The Liars Are “Very Concerned” Program They Lied About Will Be Defunded

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Buried at the bottom of a broader story on opposition to the Amash-Conyers amendment, CNN offers a very solicitous account of the White House statement opposing it, making no note of how absurd the entire premise is.

The White House issued a statement Tuesday evening, saying that it opposes the amendment and urges the House to reject it. “In light of the recent unauthorized disclosures, the president has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens,” the statement said. “However, we oppose the current effort in the House to hastily dismantle one of our intelligence community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process.”

CNN does, however, provide James Clapper and Keith Alexander an opportunity to give their readout of the TS/SCI briefings they gave Congress.

In spite of reporting describing it as a lobbying session, these noted prevaricators claim their job wasn’t to persuade, it was just to answer questions.

“Our mission wasn’t to convince the House to do anything other than to provide information for them to make a decision,” Alexander told CNN.

Asked if they satisfied lawmakers and persuaded them not to change the program, Alexander would only say it was useful to “get the facts on the table.”

Sort of gives you the impression they failed to persuade, huh?

But if their mission was really to “provide information” and “get the facts on the table,” then what have all the unclassified briefings been about? Is this claim they were only now “providing information” yet another indication that they were, perhaps, misinforming before? Again?

That, to me, is a big part of this story: that two men who have lied repeatedly about these programs felt the need to conduct Top Secret briefings to provide information that hadn’t been provided in the past.

All of which makes me very unsympathetic to Clapper’s stated worry.

A day before the House is expected to vote on restrictions to the National Security Agency’s controversial phone surveillance program, the director of national intelligence told CNN Tuesday he would be “very concerned” if the measure were to pass.

This program is problematic for several reasons: it is overkill to achieve its stated purpose and it violates the intent of the Fourth Amendment.

But add to that the trust those overseeing the program chose to piss away by lying about this collection repeatedly in the past.

If Amash-Conyers does pass (and it’s still a long-shot unless each and every one of you manages to convince your Rep to support it), it will be in significant part because Clapper and Alexander abused the trust placed in them.

Update: HuffPo covers this straight, too, though at least it includes Demand Progress’ views.

After 7 Years of Refusing Any Public Debate, Executive Decries Congress for Not Being “Open”

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Here’s what the Administration thinks about the Amash-Conyers amendment (which it calls the Amash Amendment, perhaps not wanting to name a Democrat who has been involved in historic fights against out-of-control executive power in the past), which would defund dragnet Section 215 collection.

In light of the recent unauthorized disclosures, the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens. The Administration has taken various proactive steps to advance this debate including the President’s meeting with the Privacy and Civil Liberties Oversight Board, his public statements on the disclosed programs, the Office of the Director of National Intelligence’s release of its own public statements, ODNI General Counsel Bob Litt’s speech at Brookings, and ODNI’s decision to declassify and disclose publicly that the Administration filed an application with the Foreign Intelligence Surveillance Court. We look forward to continuing to discuss these critical issues with the American people and the Congress.

However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.

I find it interesting, first of all, that they sent this after Keith Alexander had his shot to lobby Congress in a Top Secret/SCI briefing. I guess they didn’t come away with a high degree of confidence Amash-Conyers was going to fail.

Then consider the head-spinning logic:

  • Unauthorized disclosures led to a Presidential claim he welcomes a “debate”
  • It lists several examples in which Executive Branch figures tell the public details about this surveillance (note the White House didn’t mention the NSA documents, which had to be withdrawn for inaccuracies); it calls these “proactive” in spite of the fact that they are all clear reactions to that unauthorized disclosure
  • It reiterates that it considers these one-way communications discuss[ions]
  • After saying one-way communication is discussion, the Administration says, “this blunt approach is not the product of an informed, open, or deliberative process”
  • Having made this ridiculous argument, the White House says it wants a “reasoned review”

Hell, if I were a self-respecting member of Congress, I’d support Amash-Conyers even if I weren’t already predisposed to, if only because this is such a crazy bat-shit claim to reason and openness.

The Executive Branch has had 7 years to have an open debate. It chose not to have that open debate. Now that one has been brought to it by Congress, it pretends Congress is the one at fault for the lack of informed or open process.

Will Keith Alexander FINALLY Tell the Full Truth about the Section 215 Dragnet in Today’s Secret Emergency Hearing?

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Since Edward Snowden made it clear the government has been collecting every American’s phone records in the name of terrorism (and Iran), the National Security establishment has made a great show of transparency.

Don’t worry it’s “just” metadata, they said. Only 300 queries, well, we really mean only 300 identifiers to query on, which works out to be more than 300 queries. Only those who talk to terrorists. Or talk to those who talk to terrorists. Or talk to those who talk to those who talk to those who talk to terrorists, they ultimately revealed.

But last Thursday, the government admitted, sort of, that they’re not being as transparent as they claim. In a letter submitted in an effort to stall for time in ACLU’s suit to stop the 215 collection, the government offered a 400+ word description of the program. But the description started by claiming the program is, “in may respects, still classified.”

This case concerns a highly sensitive and, in many respects, still classified intelligence-collection program that is designed to assist the U.S. Government in discovering whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States. Under this program, the Federal Bureau of Investigation (FBI) obtains authorization from the Foreign Intelligence Surveillance Court (“FISA Court”) to collect telephony metadata from certain telecommunications service providers. The National Security Agency (NSA), in turn, archives this information; queries the data, when strict standards are met, to detect communications between foreign terrorist organizations and their potential operatives located in the United States; and provides leads to the FBI or others in the Intelligence Community for counterterrorism purposes. [my emphasis]

So what do the “many respects” of this program that remain classified do? And do those “many respects” describe why the government needs to create an associational database including every American to help in just 13 plots over 7 years?

Which is why I find it interesting that, as soon as it became clear the Amash-Conyers amendment to the Defense Appropriations — which would defund the dragnet collection — would get a vote, NSA Director Keith Alexander decided he needed to talk to Congress in secret.

NSA head General Keith Alexander scheduled a last-minute, members-only briefing in response to the amendment, according to an invitation distributed to members of Congress this morning and forwarded to HuffPost. “In advance of anticipated action on amendments to the DoD Appropriations bill, Ranking Member C.A. Dutch Ruppersberger of the House Intelligence Committee invites your Member to attend a question and answer session with General Keith B. Alexander of the National Security Agency,” reads the invitation.

“The briefing will be held at the Top Secret/SCI level and will be strictly Members-Only,” the invitation read.

So it seems that Alexander has more to say about this program he has feigned transparency on for the last month and a half.

That said, Alexander has a serial history of misleading statements when he doesn’t have a public fact-checker. So while he may tell Congressmen and -women more details about how they’re really using this dragnet database and why making 13 investigations easier merits such overkill, it’s unlikely he’ll tell the compete truth. I’m not optimistic.

But he may finally reveal why the government chose this overkill method of surveillance.

While Alexander is conducting this top secret briefing, you can do your own lobbying[: call you member of Congress and tell them to support Amash-Conyers.

Jim Sensenbrenner’s Horseshit Claims of Innocence

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The reaction from members of Congress to the revelation that the Section 215 surveillance was just as bad as some of us have been warning has varied, with Dianne Feinstein and Saxby Chambliss reiterating claims about the value and oversight of the program (though not having any idea, according to DiFi, whether it has prevented any attacks), and Ron Wyden and Mark Udall effectively saying “I told you so.” John Boehner dodged aggressively, suggesting even though he had approved this surveillance President Obama had to explain it.

Asked whether lawmakers should answer for an order that fell under the Patriot Act they passed, Boehner disagreed. “The tools were given to the administration, and it’s the administration’s responsibility to explain how these tools are used,” he said. ”I’ll leave it to them to explain.”

By far the most disingenuous, however, was Jim Sensenbrenner, who (as he has emphasized to the credulous journalists who served as his stenographers today) wrote the PATRIOT Act, who has remained in a senior position on House Judiciary Committee since that day, and who now claims to be shocked — shocked! — there is dragnet collection going on in the casino he built.

Predictably, he wrote a letter demanding to know how a law he has fought to retain its current form could be used to do what the law authorizes.

In the letter, Sensenbrenner de-emphasizes the role of the relevance standard to the collection.

To obtain a business records order from the court, the Patriot Act requires the government to show that: (1) it is seeking the information in certain authorized national security investigations pursuant to guidelines approved by the Attorney General; (2) if the investigative target is a U.S. person, the investigation is not based solely on activities protected by the First Amendment; and (3) the information sought is relevant to the authorized investigation.

Compare that to the letter of the law, which requires the government to show,

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation;

That is, the emphasis is not on the investigation, as Sensenbrenner’s interpretation would have it, but on the relevance of the information sought, which Sensenbrenner adds third. More importantly, Sensenbrenner omits all mention of the presumptively relevant conditions — basically something pertaining to a foreign power.

With his interpretation, Sensenbrenner has omitted something baked into Section 215, which is that so long as the government says this pertains to foreign spies or terrorists, the judge has almost no discretion on whether information is relevant to an investigation.

Then Sensenbrenner points to 2011 testimony from Acting Assistant Attorney General Todd Hinnen, who he claims said the following:

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. . . On average, we seek and obtain section 215 ordersless than 40 times per year

Which Sensenbrenner uses to claim the Department never told the Committee about this dragnet.

The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.

As it happens, Hinnen has been testifying since at least 2009 that Section 215 authorizes other secret programs. So I checked Sensenbrenner’s work. Here’s what that precise passage of Hinnen’s testimony says, without the deceitful ellipsis.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed. On average, we seek and obtain section 215 ordersless than 40 times per year. [my emphasis]

In other words, Sensenbrenner points to doctored proof he has been briefed on this secret program, but doctors it in such a way as to support his claim he never knew about this.

Not to mention that a series of DOJ Inspector General reports included classified appendices describing these secret collection operations.

Read more →

After Over 23 Requests, Congress Draws Closer to Issuing Subpoenas

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As I’ve been tracking, members of Congress have made over 23 requests for the OLC memos authorizing drone and/or targeted killing. Thus far, only the Intelligence Committees and the Senate — but not the House — Judiciary Committees have been able to see the memos, and they’ve not seen much more than the memo authorizing Anwar al-Awlaki’s killing.

Tomorrow, the House Judiciary Committee may finally get around to demanding the memos — not just the Awlaki memos, but also any memos authorizing signature strikes.

On Monday, Chairman Bob Goodlatte (R-Va.) announced the meeting to authorize the subpoena after the administration failed to meet a deadline he and the panel’s ranking member John Conyers (D-Mich.) issued last week asking for a plan to share the confidential documents.
[snip]

“There is no good reason that the committee’s bipartisan request should go unanswered. The administration’s policy raises serious questions about the role of due process during wartime when the enemy may be a U.S. citizen and the committee must explore these issues and ensure Americans’ constitutional rights are protected at all times,” he added

I’m actually somewhat surprised by this. I had thought the Administration would make a deal to show HJC only the Awlaki memos, as a way to continue to hide the signature strike memos (and Goodlatte’s language suggests that’s what he is primarily interested in; the Democrats are the ones demanding the signature strike memos).

But then, the Administration has pretty consistently surprised me with its stubbornness on these memos.

Just as a reminder, on Friday National Security Council spokesperson Caitlin Hayden claimed the Administration had,

A commitment to congressional oversight. We regularly provide the appropriate members of Congress and the committees who have oversight of our counterterrorism programs with briefings about our drone operations. We have also provided certain Members unprecedented access to highly classified and deliberative legal opinions explaining the legal rationale for certain strikes, including drone strikes that might target U.S. persons.

It’s hard to draw any conclusion except that the Administration believes that oversight of constitutional issues — such as HJC (and SJC) exercise — has nothing to do with oversight of counterterrorism issues.

After Continued Blow-Off, House Judiciary Requests Awlaki AND Signature Strike Memos

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The other day, when I reported that the Senate Judiciary Committee would get to glimpse the Office of Legal Counsel memos authorizing the killing of Anwar al-Awlaki, I noted that the House Judiciary Committee was not included in that reporting.

Also no word on whether the House Judiciary Committee will laso get to glimpse these memos.

I guess they noted the same.

Dear President Obama,

We write to renew our request from February 8th that members of the House Judiciary Committee be granted the opportunity to review all Justice Department legal opinions related to the use of lethal force in both targeted and so-called “signature strikes” against unidentified terrorist suspects.

Members of the House and Senate Intelligence Committees have been provided an opportunity to review at least some of these opinions. Today, members of the Senate Judiciary Committee were also given access to some, but not all, of the documents that we have requested. There is no reason why a similar bipartisan request from the House Judiciary Committee continues to go unanswered. If arrangements for our review of these materials are not finalized by COB tomorrow (Thursday, April 11, 2013), the Committee will have no choice but to move forward with issuance of subpoenas for the documents.

What’s particularly amusing about this response to the White House’s continued refusal to permit HJC to oversee DOJ is the scope of HJC’s request: Since last December, they’ve been asking for the broader backup, including the memos authorizing signature strikes explicitly. As a result, the Administration’s refusal to share even what they’ve shared with the other oversight committees puts that signature strike request on the subpoena table where it otherwise might not be.

Given Jonathan Landay’s reporting showing the extent not just of strikes where we don’t know the target’s identity, but also the number of side payment strikes we’re conducting, seeing such memos are even more urgent.

I’m guessing the timing gives the White House new-found interest in negotiating sharing those other memos.  Read more →

That Makes Over 21 Requests by 31 Members of Congress, Mr. President

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Adding the letter that Barbara Lee, as well as a list of all Members of Congress who have, at one time or another, requested the targeted killing memos.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

All Members of Congress who have asked about Targeted Killing Memos and/or policies

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern