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702 Reauthorization Bill: Why a Back Door Fix for Criminal Searches Is Meaningless

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In this post, I explained how the House Judiciary Committee Section 702 reauthorization bill only closes the back door search loophole for “quer[ies] for evidence of a crime.” In addition, they let the government define what a “query reasonably designed for the primary purpose of returning foreign intelligence information” is, which means they’re basically punting on defining it themselves until 2023.

Given that treatment, the back door search fix is virtually useless, because for every search that might return the communications of an American, the government can always claim they’re considering recruiting the American as an informant.

Any communication queryable by back door search by definition involves a person of interest for a foreign intelligence reason

To understand why, first remember why FBI would get this information in the first place. They can only get raw 702 data if they have an active full investigation — and by definition, the targets of that that active full investigation are going to be targeted for the same reasons the target would be targeted by NSA, because they are of national security interest, pertaining to counterterrorism, counterproliferation, and counterintelligence/nation-state hacking.

Thus, any American whose communications might come up in a back door search will — by definition — be someone talking to a target of interest. That doesn’t mean they’re talking to a “bad guy,” as US national security professionals insist on speaking of adversaries. They’re just someone who has foreign intelligence information related to one of those three-plus topics.

Since 2002, the government has insisted that any crime — including rape — can be foreign intelligence information

The precedent that determined the limits of the government’s use of FISA-obtained information in criminal proceedings came in the 2002 In Re Sealed case challenge where the FISA Court of Review deemed the PATRIOT Act’s adoption of “significant purpose” language in FISA targeting to permit the sharing of information for criminal purposes.

As part of that case, the government claimed it could use criminal information to recruit a foreign spy.

Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

During the hearing, FISCR judge Laurence Silberman tried to get Solicitor General Ted Olson to envision some kind of crime that couldn’t be used for foreign intelligence purpose, suggesting rape. But even that, Olson argued, could be deemed foreign intelligence information, because the government could use evidence of rape to coerce someone to become an informant.

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

The previous year, in 2001, the government had used the threat of a rape prosecution against Abu Zubaydah’s brother, Hesham Abu Zubaydah (who had had calls with his brother picked up on wiretaps), to convince him to become an informant. The FISCR decision certainly didn’t endorse approving individual FISA warrants to find proof of crimes that could be used to flip people. But neither did it place meaningful limits (and why should it, given that in those halcyon days all FISA orders were individualized).

In years since then, the government has repeatedly told the FISC they’re using programmatic spying to find informants. In both 2006 and 2009 it said it would use the phone dragnet “to discover individuals willing to become U.S. Government assets.” (see PDF 22 for citations to two Keith Alexander statements) That’s also one way the FBI measured the efficacy of Stellar Wind.

The Gartenlaub case shows FBI will use kiddie porn to (attempt to recruit) foreign intelligence informants

This is one reason the Keith Gartenlaub case is so important, in which the government used a criminal warrant, then a FISA warrant, then another criminal warrant to obtain evidence that Gartenlaub had nine-year old kiddie porn on his hard drives. The government justified all those warrants based on the claim that Gartenlaub was working with his Chinese in-laws — who always got described as influential in China — to steal Boeing information to share with China. Ultimately, they found no evidence of that.

I will eventually show evidence that the government also used Section 702 against Gartenlaub, probably (at a minimum) to obtain the Skype conversations he had with his in-laws, who would be targetable as influential Chinese citizens.

In any case, in association with the Gartenlaub case, the government changed both the individual FISA and the Section 702 minimization procedures to permit the sharing of data collected under FISA with the National Center for Missing and Exploited Children, meaning they can use FISA to obtain information on kiddie porn in the name of foreign intelligence collection.

After they indicted Gartenlaub, the government offered to drop the charges for information on the spying with China.

During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.

Even at that late date, after eighteen months, two criminal warrants, and a FISA warrant, the government was treating Gartenlaub’s alleged kiddie porn possession as potential foreign intelligence information.

One purpose of assessments — and queries conducted under them — is to assess people to become informants

Every description of back door searches is clear: FBI can use them at the assessment level (that is, when they’re trying to figure out whether to open a full investigation).

[W]henever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. In the case of an assessment, an assessment may be initiated “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence information.

And FBI’s Domestic Investigations and Operations Guide is equally clear: the FBI uses assessments to determine whether people would make good informants. For example, the DIOG describes this scenario — which sounds just like what happened to Professor Xiaoxiang Xi — among its scenarios for using assessments.

A field office has a Full Investigation open on a group of individuals from country X believed to be targeting engineers and high-tech workers involved in the production of semiconductor chips. Evidence in the Full Investigation suggests that the individuals from country X are attempting to recruit the engineers and high tech workers to steal information regarding the semiconductor chips in exchange for money. During the investigation, an engineer who travels frequently to country X has been identified.

Information developed during the Predicated Investigation may be used to determine whether the engineer should be viewed as a subject of the investigation or a potential [Confidential Human Source]. If the engineer is determined to be a subject of the Full Investigation, a Type 5 Assessment may not be opened and the engineer needs to be opened as the target of a Full Investigation. If the primary focus of the FBI’s interest is to determine whether the individual may be a potential source, a Type 5 Assessment should be opened to collect information necessary to determine whether the FBI should attempt to recruit the engineer as a CHS. (PDF 117)

Remember: the FBI can obtain any 702 data related to a full investigation like the one described here. And Chinese scientists suspected of IP theft would be clear targets under the Foreign Government certificate. So it is solidly within the realm of possibility that the government would target Chinese scientists, obtain conversations (like the one that Xi got targeted for) about semiconductors, and then find that information at a later time when researching the American whose communication got collected incidentally.

That’s the problem with trying to fix the back door loophole while still permitting back door searches for foreign intelligence assessments: because it’s not until the government pulls up the information at the assessment stage — and it may well be years later, as was the case for Gartenlaub — that the government decides whether they’re going to use it and its fruits as foreign intelligence or criminal information.

A Good Idea that May Backfire: FISCR Fast Track

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I’ve written several posts about Leahy’s USA Freedom already. To recap:

  • The bill is definitely an improvement off of USA Freedumber, though it retains “connection” chaining language I’m seriously concerned about
  • The bill permits the government to collect “bulky” collections in at least two ways: the use of IP addresses and non-individual persons (aka corporations)
  • The bill inexplicably exempts the FBI from reporting requirements on back door searches

My last new concern about the bill pertains to a measure that means well, but might backfire.

The bill includes language designed to provide for appeals of significant issues, first to the FISA Court of Review, and then to SCOTUS.

(j) REVIEW OF FISA COURT DECISIONS.—After issuing an order, a court established under subsection (a) shall certify for review to the court established under subsection (b) any question of law that the court determines warrants such review because of a need for uniformity or because consideration by the court established under subsection (b) would serve the interests of justice. Upon certification of a question of law under this paragraph, the court established under subsection (b) may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

(k) REVIEW OF FISA COURT OF REVIEW DECISIONS.—

(1) CERTIFICATION.—For any decision issued by the court of review established under subsection (b) approving, in whole or in part, an application by the Government under this Act, such court may certify at any time, including after a decision, a question of law to be reviewed by the Supreme Court of the United States.

(2) SPECIAL ADVOCATE BRIEFING.—Upon certification of an application under paragraph (1), the court of review established under subsection (b) may designate a special advocate to provide briefing as prescribed by the Supreme Court.

(3) REVIEW.—The Supreme Court may review any question of law certified under paragraph (1) by the court of review established under subsection (b) in the same manner as the Supreme Court reviews questions certified under section 1254(2) of title 28, United States Code.

That is, it provides a way for FISC to ask FISCR to review their work, and for FISCR to ask SCOTUS to review their work.

To some degree, the more eyes that look at these novel decisions, the better.

But neither the FISCR review nor the SCOTUS review requires even the Special Advocate. While FISCR has, in the past, permitted amici, they (and Yahoo, in the case where Yahoo appealed FISC’s 2007 recision on Protect America Act) were shooting in the dark. the new advocate, such as it exists, would be able to argue before FISCR if the court wanted it.

So to a significant extent that would result in the same people (the government and the Court’s permanent staff, on one side, and the unproven advocate on the other) arguing the same issue over and over. with the courts themselves choosing to have their own decisions certified by the higher courts.

With the potential result that you’d have appellate decisions or even a SCOTUS instruction without ever giving a real adversary a shot at the issue. If FISC responded to the phone dragnet question before the way they have since Snowden leaked details of it, they would have gotten it certified to confirm their authority.

One addition to Leahy’s bill could exacerbate that. His bill requires the FISC to consult with PCLOB on appointees as  Advocates. With today’s PCLOB, that’d be a good thing. But if Republicans win back the Senate — especially if Mitch McConnell retains his seat — you’d see another PCLOB member the likes of Elisabeth Collins Cook and Rachel Brand. Both are really smart. But both were architects of the surveillance regime while serving as DOJ Policy AAGs. Add a third of that ilk, and PCLOB could load up the Advocates corp with people like Steven Bradbury.

Moreover, for the foreseeable future, Justice John Roberts will be handpicking these judges, which doesn’t give me a lot of confidence.

I just think the Advocate system is unproven right now. It may work out, it may be gamed to reinforce the dysfunction of the court. And the record of the FISCR — especially Laurence Silberman’s efforts to rule FISA illegal in 2002 — give me no confidence this kind of self-appeal would do anything but sanction bad decisions.

Mind you, the Leahy bill also permits the government to go on denying aggrieved people of review of Section 215 collection, so it’s not clearly anyone else will get standing to challenge this program in particular.

But it seems like the FISC system is so dysfunctional, there’s no reason to pre-empt the possibility of real adversarial court function.

Update: Orin Kerr thinks this is unconstitutional.

Imagine the Informants You Can Coerce When You Can Spy on Every Single American

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Please consider supporting my fundraiser so I can continue to do this kind of work. 

Two years ago, I noted a chilling exchange from a 2002 FISA suit argued by Ted Olson. Laurence Silberman was trying to come up with a scenario in which some criminal information might not have any relevance to terrorism. When he suggested rape, Olson suggested we might use evidence of a rape to get someone to inform for us.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us.

It’s chilling not just because it suggests rapists have gone free in exchange for trumping up terrorist cases for the government, but because it makes clear the kinds of dirt the government sought using — in this case — traditional FISA wiretaps.

Now consider this passage from the government’s 2009 case that it should be able to sustain the Section 215 dragnet.

Specifically, using contact chaining [redacted] NSA may be able to discover previously unknown terrorist operatives, to identify hubs or common contacts between targets of interest who were previously thought to be unconnected, and potentially to discover individuals willing to become U.S. Government assets.

Remember, while the government downplayed this fact, until Barack Obama won the 2008 election, the government permitted analysts to contact chain off of 27,090 identifiers, going deeper than 3 hops in. That very easily encompasses every single American.

The ability to track the relationships of every single American, and they were using it to find informants.

In the 7 years since this program (now allegedly scaled back significantly, but still very very broad) has existed, the dragnet has only helped, however indirectly, to capture 12 terrorists in the US (and by terrorist, they also include people sending money to protect their country against US-backed invasion).

Which means the real utility of this program has been about something else.

The ability to track the relationships of every single American. And they were using it to find informants.

Even while the number of terrorists this program discovered has been minimal, the number of FBI informants has ballooned, to 15,000. And those informants are trumping up increasingly ridiculous plots in the name of fighting terrorism.

The ability to track the relationships of every single American (or now, a huge subset of Americans, focusing largely on Muslims and those with international ties). And they were (and presumably still are) using it to find informants.

Update: Note how in Keith Alexander’s description of the alert list, the standard to be on it is “the identifier is likely to produce information of foreign intelligence value” that are “associated with” one of the BR targets (Alexander 33). This is very similar to the language Olson used to justify getting data that didn’t directly relate to terrorism.

Also note this language (Alexander 34):

In particular, Section 1.7(c) of Executive Order 12333 specifically authorizes NSA to “Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions.” However, when executing its SIGINT mission, NSA is only authorized to collect, retain or disseminate information concerning United States persons in accordance with procedures approved by the Attorney General.

Again, this emphasizes a foreign intelligence and CI purpose for collection that by law is limited to terrorism. Which could mean they think they can collect info to coerce people to turn informant.

The AG guidelines on informants are, not surprisingly, redacted.

The Torture That Underlies FISA Court’s “Special Needs” Decisions

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At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

As explained in more detail below, since the inception of [the program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. Read more →

Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

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I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

Read more →

Using Domestic Surveillance to Get Rapists to Spy for America

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The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.

In Re Sealed Case and the Goldsmith Memo

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In addition to what I laid out here, comparing the 2006 White Paper with the May 6, 2004 Goldsmith memo on the warrantless wiretap program made me realize that the White Paper relies more frequently on In re: Sealed Case than Goldsmith does, at least in the unredacted portions. By my count, the White Paper refers to In re Sealed Case 9 times, whereas Goldsmith refers to it just 3 times (see pages 34, 47, 48; though technically one citation includes three quotes from it).

So I wanted to see why that might be–and what it might say about the program generally and the redacted sections of Goldsmith’s memo.

In Re Sealed Case: How Did the Patriot Act Change the “Wall” between Criminal and Intelligence Investigations?

In the PATRIOT Act, Congress expanded the limit on how the information sought in a FISA warrant could be used. It had required that foreign intelligence be the primary purpose of collection; in an attempt to break down the wall between criminal and intelligence investigations, PATRIOT allowed that foreign intelligence only be a “significant” purpose of the collection. In response to that change, Attorney General Ashcroft issued a memo finding that meant law enforcement could be the primary purpose of such collection and holding that criminal prosecutors could consult on the terms of the wiretaps to be used.

The FISA Court, noting that the FBI had misrepresented its goals in FISA collection in a number of recent instances (but citing only those from before 9/11) invoked its role in ensuring FISA collection meet certain minimization guidelines. It ruled that the government had to keep the Office of Intelligence and Policy Review in the loop in conversations between criminal and intelligence personnel, and criminal personnel could not direct wiretaps.

The FISA Court of Review reversed that decision, finding that the two functions were so intertwined as to permit the involvement of criminal personnel in planning wiretaps.

But its ruling also considered whether the change–allowing the government to use FISA to investigate “intelligence crimes”–was Constitutional under the Fourth Amendment. That discussion, while somewhat inconclusive, lays out some guidelines for what might be a reasonable search for a foreign intelligence purpose. It’s that discussion that provides ripe material for Goldsmith’s and the White Paper’s project of trying to claim the warrantless wiretap program was legal. But also, likely, caused big problems for the warrantless program as well.

The In Re Sealed Case Citations

Here’s how the unredacted parts of Goldsmith and the White Paper rely on In re Sealed Case.

Proof that “the wall” was a problem independent of 9/11

In attempts to dismiss the argument that the modifications Congress made to FISA after 9/11 prove Congress still intended the Administration to rely on its, both papers point to the discussion in In re Sealed Case about the problem of a “wall” between criminal investigations and intelligence. (Goldsmith 34, White Paper 28fn)

A claim that the opinion treats foreign wiretapping as an inherent authority

In a discussion of the President’s inherent authority to conduct warrantless searches of foreign intelligence, both papers cite In re Sealed Case on past Circuit discussions of the President’s power to use warrantless wiretaps to obtain foreign intelligence. Goldsmith does so in one discussion.

The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F 3rd 717, 742 (Foreign Intel. Surv. Ct. or Rev. 2002). On the basis of that unbroken line of precedent, the Court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” (Goldsmith 48)

The White Paper cites the first quote on page 31 and again on 37, the second on page 8, and the third on page 35.

In addition to the general use of In re Sealed Case to argue inherent authority, there’s a footnote in In re Sealed Case that dismisses concerns Laurence Silberman raised during the original debate on FISA about the non-adversary process laid out in it; Goldsmith noted that footnote did not extend to Silberman’s larger complaints about inherent power. (Goldsmith 47fn)

Discussion of how “special needs” would permit the use of FISA for criminal wiretaps

The White Paper, unlike Goldsmith in his unredacted discussion of times when “special needs” allow the government to avoid a warrant, relies on In re Sealed Case’s discussion on the topic. The White Paper  includes this quote:

One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes

beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46. (page 38)

It repeats that very reference later on the same page.

In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by

questioning”).

It cites the same passage again, claiming the FISCR had concluded that that passage held that foreign intelligence fit the definition of special needs.

And then borrows from what it claims the FISCR concluded.

As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. (page 39)

In other words, the unredacted sections of Goldsmith do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does. Mind you, he does discuss special needs and his discussion covers most of the same cases as the White Paper–notably on page page 39 and to some degree on 105. But he doesn’t cite FISCR.

“The Government … Has Affirmatively Argued that FISA Is Constitutional”

Now, obviously, we can only compare the unredacted parts of Goldsmith’s memo with what the White Paper uses. And there are definitely places in his memo where it appears likely that he discussed In re Sealed Case in currently redacted passage.

For example, two pages following Goldsmith’s use of In re Sealed Case to claim FISCR had endorsed warrantless wiretapping as part of the President’s inherent authority are redacted.

I’m guessing that Goldsmith might have felt obliged to address this part of In re Sealed Case:

The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

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