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“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.

GOP Not Anxious to End John Roberts’ Unilateral Reign Appointing FISA Judges

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FWIW, Roger “Broccoli” Vinson aside, John Roberts has been appointing some solidly conservative, but nevertheless not lockstep Republicans to the FISA Court in recent years. But especially given the degree to which the FISC is now playing what former FISC judge James Robertson called a policy role, it is all the more inappropriate to have the Chief Justice, of whatever party, unilaterally pick FISC judges.

And some members of Congress — Adam Schiff in the House and Richard Blumenthal in the Senate — are trying to change that.

Curiously, however, while Republicans are happy to cosponsor legislation to force FISC to publish their opinions, Schiff, at least, has had no success finding a Republican cosponsor to support moves to take the FISC appointments out of John Roberts’ hands.

Schiff’s having a tougher time finding GOP co-sponsors for a second measure that would require Presidential nomination and Senate confirmation of FISA judges. Currently they are appointed by U.S. Supreme Court Chief Justice John Roberts.

I guess whatever claims GOP Representatives make about wanting to impose some controls on this dragnet take a back seat to maximizing party influence?

In These Times We Can’t Blindly Trust Government to Respect Freedom of Association

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One of my friends, who works in a strategic role at American Federation of Teachers, is Iranian-American. I asked him a few weeks ago whom he called in Iran; if I remember correctly (I’ve been asking a lot of Iranian-Americans whom they call in Iran) he said it was mostly his grandmother, who’s not a member of the Republican Guard or even close. Still, according to the statement that Dianne Feinstein had confirmed by NSA Director Keith Alexander, calls “related to Iran” are fair game for queries of the dragnet database of all Americans’ phone metadata.

Chances are slim that my friend’s calls to his grandmother are among the 300 identifiers the NSA queried last year, unless (as is possible) they monitored all calls to Iran. But nothing in the program seems to prohibit it, particularly given the government’s absurdly broad definitions of “related to” for issues of surveillance and its bizarre adoption of a terrorist program to surveil another nation-state. And if someone chose to query on my friend’s calls to his grandmother, using the two-degrees-of-separation query they have used in the past would give the government — not always the best friend of teachers unions — a pretty interesting picture of whom the AFT was partnering with and what it had planned.

In other words, nothing in the law or the known minimization rules of the Business Records provision would seem to protect some of the AFT’s organizational secrets just because they happen to employ someone whose grandmother is in Iran. That’s not the only obvious way labor discussions might come under scrutiny; Colombian human rights organizers with tangential ties to FARC is just one other one.

When I read labor organizer Louis Nayman’s “defense of PRISM,” it became clear he’s not aware of many details of the programs he defended. Just as an example, Nayman misstated this claim:

According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange. While such assertions from government officials are difficult to verify independently, the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.

Keith Alexander didn’t say NSA’s use of Section 702 and Section 215 have thwarted 50 planned attacks against Americans; those 50 were in the US and overseas. He said only around 10 of those plots were in the United States. That works out to be less than 20% of the attacks thwarted in the US just between January 2009 and October 2012 (though these programs have existed for a much longer period of time, so the percentage must be even lower). And there are problems with three of the four cases publicly claimed by the government — from false positives and more important tips in the Najibullah Zazi case, missing details of the belated arrest of David Headley, to bogus claims that Khalid Ouazzan ever planned to attack NYSE. The sole story that has stood up to scrutiny is some guys who tried to send less than $10,000 to al-Shabaab.

While that doesn’t mean the NSA surveillance programs played no role, it does mean that the government’s assertions of efficacy (at least as it pertains to terrorism) have proven to be overblown.

Yet from that, Nayman concludes these programs have “been effective in keeping us safe” (given Nayman’s conflation of US and overseas, I wonder how families of the 166 Indians Headley had a hand in killing feel about that) and defends giving the government legal access (whether they’ve used it or not) to — among other things — metadata identifying the strategic partners of labor unions with little question.

And details about the success of the program are not the only statements made by top National Security officials that have proven inaccurate or overblown. That’s why Nayman would be far better off relying on Mark Udall and Ron Wyden as sources for whether or not the government can read US person emails without probable cause than misstating what HBO Director David Simon has said (Simon said that entirely domestic communications require probable cause, which is generally but not always true). And not just because the Senators are actually read into these programs. After the Senators noted that Keith Alexander had “portray[ed] protections for Americans’ privacy as being significantly stronger than they actually are” — specifically as it relates to what the government can do with US person communications collected “incidentally” to a target — Alexander withdrew his claims.

Nayman says, “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm.” I would respond that neither should we simply assume they’re not abusing their authority, particularly given evidence those officials have repeatedly misled us in the past.

Nayman then admits, “We should do all we can to assure proper oversight any time a surveillance program of any size and scope is launched.” But a big part of the problem with these programs is that the government has either not implemented or refused such oversight. Some holes in the oversight of the program are:

  • NSA has not said whether queries of the metadata dragnet database are electronically  recorded; both SWIFT and a similar phone metadata program queries have been either sometimes or always oral, making them impossible to audit
  • Read more →

Transpartisan Arguments the Government Won’t Want to Succeed

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Justin Amash, Paul Broun, Tulsi Gabbard, Morgan Griffith, Rush Holt, Walter Jones, Barbara Lee, Zoe Lofgren, Thomas Massie, Tom McClintock, Eleanor Holmes Norton, Beto O’Rourke, Steve Pearce, Matt Salmon, Mark Sanford, Ted Yoho.

Well, that’s got to be a group of people the Powers That Be don’t want to see joining together?

Captain Tulsi Gabbard, Physics PhD Rush Holt, Appalachian Trail Hiker Mark Sanford, and Paleocon Walter Jones. With my libertarian Congressman, Justin Amash apparently leading the bunch.

All on a court motion together, calling for the court to release the FISC opinion explaining why the government’s Section 702 collection was unconstitutional because without it they can’t do their job. Which includes, in part, informing the American people.

As important, whatever information Members of Congress learn about secret FISC opinions and orders, they are unable publicly to discuss or debate them because any disclosure is still subject to secrecy requirements.

[snip]

In light of recent disclosures regarding the existence of a “classified intelligence program,” related to the “business records” section of FISA, the Director of National Intelligence has acknowledged that “it is important for the American people to understand” the limits of the program and the principles behind it.

[snip]

Notwithstanding the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA, even the amici — Members of the U.S. Congress — cannot meaningfully participate in that public debate so long as this Court’s relevant decisions and interpretations of law remain secret. They cannot engage in public discussion on the floor of the Senate and the House about the government’s surveillance programs. And they cannot engage in dialogue with their constituents on these pressing matters of public importance.

[snip]

Informed, public debate is central to Congress’s role as a coequal branch of the federal government. The Constitution acknowledges the unique importance of open debate to Congress’s role in the Speech or Debate Clause. Debate in Congress serves no only the institution’s internal goal of creating sound public policy. Courts have recognized a second crucial purpose of informed, public debate in Congress: to inform the American people about the issues affecting their government.

Now, I think they may overestimate the degree to which this opinion pertains to the Section 215 collection (indeed, if it pertains to Internet metadata collection, it pertains to Section 214 of PATRIOT instead). [Update, 9/13/13: I’m mistaken here–it was exclusively Section 215.]

And I think their Speech or Debate argument has confused people about whether these members of Congress have seen what’s in the opinion. Holt used to be on the House Intelligence Committee, but no longer is, so I assume none of the Members on this brief know what the opinion is. In any case, the House has much more restrictive rules about who can access intelligence secrets than the Senate.

But I am rather fond of the argument that Congress can’t do its job with all the secrecy the Executive is operating under.

Cox on Rogers: “Like he was J. Edgar Hoover”

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Since Carl Levin announced he would retire, I’ve been hoping to see Justin Amash take on Mike Rogers in a Republican primary. This National Journal article captures the dynamics of that possibility well (though may overestimate how much money Amash could raise).

But before I get into why I’d be so fascinated about such a race, check out how former Republican  Attorney General Mike Cox describes Mike Rogers.

If Rogers were to run, he would have to give up his chairmanship of the House Intelligence Committee, for which there are no term limits. Former GOP Michigan Attorney General Mike Cox downplayed that motivation, saying Rogers’ ambition for higher office trumps his desire to make a meaningful influence in foreign policy. “If [Rogers] lost, he could make a lot of money in D.C. as a lobbyist,” Cox said last week. “He’s so full of [expletive] to begin with. He tells all these stories about being an FBI agent, and he was in the FBI for two years. Like he was J. Edgar Hoover.”

“He’s so full of shit to begin with.”

This is the great hope of MI’s GOP to take over Levin’s seat.

Now, Gary Peters, who’ll run on the Democratic side, is one of MI’s rising Democratic stars. And as the article notes, he hails from Oakland County, which is critical not just because of the fundraising base there, but because it’s the second largest county and pretty evenly split; Peters has a proven ability to win that critical swing county’s votes.

Nevertheless, in spite of the fact that if Amash ran (whether or not he won), I’d probably end up represented by a GOP neanderthal rather than Amash (because Democrats are unlikely to win the district in an off year, and because there are tons of up-and-coming neanderthal GOPers in the Grand Rapids area), I’d still really like to see a Rogers-Amash race.

That’s because it’d serve as a nationally watched race between the GOP’s rising libertarian wing and one of the GOP’s most authoritarian leaders. Mike Rogers has championed CISPA and whatever other new surveillance efforts anyone wanted. Justin Amash led those few Republicans who opposed it. Amash even came out in favor of reading Dzhokhar Tsarnaev a Miranda warning this weekend.

In other words, in a battle between Rogers and Amash, civil liberties and the Constitution would be central.

Mike Cox was making fun of Rogers’ self-promotion when he drew the analogy with J. Edgar (and there’s an implicit respect for Hoover in his comment). But it’s high time someone started making the analogy between the fear-mongering and surveillance Rogers and others embrace and Hoover’s.

“We are running out of angry old white men in this country”

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Last we heard from the top leadership of my local Democratic Party in this blog, it was telling women at a women’s political event that they had to support 61-year old (though not particularly angry) Steve Pestka because “he’s with us on everything else” but choice.

 As we were waiting for the Senator to speak, a top county Democrat was sitting several rows behind me trying to convince some of the women not to support Trevor Thomas. “There is absolutely no way he can win,” the guy said (the polling says he’s wrong, and I suspect he knows that). In addition to saying a gay man can’t win, he also said a pro-choice person can’t win in the district (his listeners pointed out that Stabenow herself had won the district; so have at least two other pro-choice candidates). Then he described Steven Pestka, using the line Michigan Democrats used to defend Bart Stupak as he was rolling back access to choice for women across the country.

He’s with us on everything else.

But the really appalling comment, uttered by a man at a women’s event, was this:

I need to win this year.

If the guy were reasonably intelligent, he might have said, “we need to win the gavel back for Nancy Pelosi.” But he couldn’t even muster a “we need to win” this year. Nope. It was “I need to win this year,” and that’s why women have to suck it up and vote for someone who has attacked their autonomy in the past.

Today, the head of the local party, Jim Rinck, is spinning yesterday’s results by promising demographics will eventually make Grand Rapids more Democratic.

Kent County Democratic Party chairman Jim Rinck said several factors contributed to the final tally – and he sees a trend toward a growing number of Democratic voters in the GOP stronghold.

“Like it or not, reality comes even to Kent County,” he said. “We are running out of angry old white men in this country. And they’re the constituents of the Kent County Republican Party.”

Sadly, Rinck was not asked why, then, the party pushed an older white man as their congressional candidate. That candidate lost to the rather young Justin Amash by almost 9 points.

That’s particularly unfortunate given the explanation one woman offered in the article for why she even decided to vote this year: Republican attacks on women and gays.

Brianna Holben, 20, cast her vote for Barack Obama Tuesday. Despite being her first-time voting, Holben said she didn’t have a real urge to participate until women’s reproductive rights and the funding of organizations like Planned Parenthood became part of the campaign.

Holben, a student at Grand Rapids Community College, also said picked Obama because Democrats, in general, are more supportive of gay marriage than Republicans.

“I have a lot of friends in the gay community,” she said. “If we live in a free country, I don’t believe a person’s religious beliefs should affect someone’s ability to pick who they marry.”

Holben might well agree with what Rinck says–the Republicans are the party of old white men. But not with what Rinck did–push an older white man rather than openly gay, women’s rights champion, Trevor Thomas, they opposed.

That is, Rinck seems to understand, abstractly, what Democrats need to do to win. But he did the exact opposite this year.

Judge Forrest’s Invitation to Congress: Pass the Smith-Amash Amendment

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As I noted yesterday, Judge Katherine Forrest stopped the government from enforcing Section 1021 of last year’s NDAA, because it is having a chilling effect on the First Amendment protected activities of plaintiff’s including Chris Hedges.

There’s an aspect of her ruling that was rather auspiciously timed. Because in addition to enjoining 1021, she invited Congress to fix it.

Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.

As luck would have it, the House is poised to vote today on the Smith-Amash amendment to next year’s NDAA. Their amendment would largely–though perhaps not entirely–“moot the need” for any further proceedings in the Hedges case, because it would eliminate indefinite military detention for those captured in the US.

Reps. Adam Smith (D-Wash.) and Justin Amash [my Rep] are planning to offer an amendment to this year’s defense authorization bill that would guarantee that no one—citizen or otherwise—could be denied a fair trial if captured in the United States. Smith, who is the ranking member of the House Armed Services Committee, will introduce the bill during a hearing Wednesday. Amash has agreed to support it once the defense bill comes to the floor next week, possibly bringing along enough Republican support to ensure its passage in the House.

“The amendment is drafted to prevent the president from indefinitely detaining persons captured on US soil without charge or trial,” said Will Adams, a spokesperson for Amash.

I spoke to Adams last night, and the Amendment is within striking distance of having enough votes to pass–though the House leadership is trying a bunch of stunts to avoid that outcome.

I said passing this Amendment would mostly moot further proceedings. That’s because Forrest issued her injunction covering all the plaintiffs, including people like Brigitta Jonsdottir, who is an Icelandic citizen and has sworn off from traveling to the US because of the NDAA and other Wikileaks related prosecution. Whereas the Smith-Amash amendment would apply to Jonsdottir only if she were in the US; it doesn’t offer any protection to non-citizens outside of the US.

Which means, with her ruling, Forrest has made the Smith-Amash amendment the sensible middle ground (really, it ought to be considered the bare minimum, but even still, before last night it didn’t stand a chance in hell of passing the Senate). That is, it does what most Americans seem to want done to the NDAA, to limit it so it doesn’t apply to them.

In her ruling, Forrest made it clear she tried to offer the government an easy way to help her avoid enjoining this section.

The Court’s attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so–thereby ensuring standing and requiring this Court to reach the merits of the instant motion.

She also made it clear she’d welcome Congress fixing the problem. Let’s see if they do so today.