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The Maneuvers to Get Ahead of the NSA Review Group Recommendations

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Here’s a quick summary of all the events happening in response to the NSA Review Group report:

Tuesday, January 7: James Clapper “and other Intelligence Community Leaders” meet with Geoffrey Stone, Cass Sunstein, and Peter Swire; SSCI holds closed briefing with Review Group

Wednesday, January 8: Obama meets with Intelligence Community leaders; Obama meets with PCLOB; NatSec Aides and Congressional staffers meet in Situation Room

Thursday, January 9: Obama meets with (reportedly invited) Dianne Feinstein, Saxby Chambliss, Mike Rogers, Dutch Ruppersberger, Pat Leahy, Chuck Grassley, Bob Goodlatte, John Conyers, Ron Wyden, Mark Udall, and Jim Sensenbrenner

Tuesday, January 14: Review Group testifies publicly before Senate Judiciary Committee

PCLOB, which I believe has a better understanding of the dragnet than several members of the Review Group, was supposed to present its own recommendations sometime this month, and the White House claims to be conducting its own internal review which is finishing up work.

I raise this schedule to point to the several times when Obama will meet with advocates for reform in a venue where some horse-trading can go on. Not only will he meet with PCLOB before their recommendations come out (as he met with the Review Group), but he will have the sponsors of legislation that would reform NSA and FBI’s counterterrorism programs, as well as Wyden and Udall, in a room with a larger number of opponents of reform.

Jay Carney said today Obama will introduce his own “reforms” before the State of the Union on January 28. But I wouldn’t be surprised if Obama moved to pre-empt these other discussions even earlier than that, as he did with the Review Group suggestion that the Director of the NSA position be split from the Cybercommand position.

Will he try to get an agreement from the legislative critics to withdraw their legislation if he makes some changes as executive prerogative?

Leon Panetta Torture Review Agrees with Senate Torture Report

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I’m watching the confirmation hearing for Caroline Krass to be General Counsel of the CIA.

When his turn, Mark Udall just started by saying that after the review process between CIA and Senate Intelligence Committee, “I’m more confident than ever of the factual accuracy of the Committee’s 6300 page study.” He then repeated it again.

He went on to reveal that CIA is still withholding certain cables the Committee needs to finish the report.

Finally, he revealed that Leon Panetta did a review of the torture program. And that review came to the same conclusion as the Senate Intelligence Report.

Which raised two questions, for Udall. First, given that Panetta, as CIA DIrector, came to largely similar results as the Senate did, why has the CIA spent a year fighting the release of the Torture Report?

More importantly, why has — as Udall revealed — refused to turn over the Panetta review to the Committee?

Very good questions.

Richard Leon: A Phone Dragnet Is Not a Special Need

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As I noted briefly in this post, Judge RIchard Leon ruled that Judicial Watch’s Larry Klayman is very likely to succeed in his suit challenging the phone dragnet on Constitutional grounds. He issued an injunction requiring NSA to take out Klayman’s data, but stayed that decision pending appeal.

While many civil liberties lawyers are hailing the decision, the its strength might be measured by the fact that Mark Udall and Jim Sensenbrenner both used it as a call to pass Leahy-Sensenbrenner; they did not celebrate the demise of the dragnet itself. That is, it is almost certain that this decision will not, by itself, end the dragnet.

I suspect this ruling will serve to break the ice for other judges (there are several other suits, a number of them launched by entities — like the ACLU — that I expect to have better command of the details of the dragnet and the reasons it is unconstitutional, which may lead to a stronger opinion). And to the extent it stands (don’t hold your breath) it will begin to chip away at NSA’s claims that searches don’t happen on collection, but on database access.

And on one point, I think Leon’s ruling provides a really important baseline on the matter of special needs.

As Orin Kerr sketches out roughly here (and I agree with much of what he says about Leon’s ruling), Leon basically held that Smith v. Maryland didn’t apply in the era of smart phones. From there, he moved onto Fourth Amendment analysis, which involves an analysis of whether the special need of hunting terrorists merits the huge privacy infringement of collecting all phone records in the US. After reviewing the precedents on special needs, Leon writes,

To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches  of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet.

Then Leon goes on to challenge the government’s claims about the need involved.

The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.”

[snip]

A closer examination of the record, however, reveals the Government’s interest is a bit more nuanced–it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow.

Which brings him to the same issue Ron Wyden and Mark Udall keep pointing to: the NSA simply doesn’t have evidence of this actually having worked.

Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any urgency.

Now, I actually think the NSA and FBI declarants in this case begin to hint at the real purpose of the dragnet — I’ll come back to that once PACER recovers from what everyone jokes is NSA retaliation for this ruling.

But with regards to accomplishing the purpose the NSA claims the dragnet serves, there’s no evidence to show. Leon finds that absent real proof that the dragnet works, Klayman’s privacy interests outweigh the Government’s need.

Given the limited record before me at this point in the litigation–most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics–I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

[snip]

Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing build telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.

Now, to be clear, before Leon gets here, he has to get by Smith v. Maryland, and I agree with Kerr that his argument there isn’t all that strong (though I disagree with Kerr that it couldn’t be).

But one big takeaway from this ruling –whether the DC Circuit overturns it or not — is that it will be very hard for the government to make the case that the need the dragnet serves outweighs the privacy cost.

Probably not with this ruling, but it may not be long before the government has to face up to the fact that its dragnet really hasn’t shown any results.

Update: New Yorker’s Amy Davidson writes, “But what his ruling does is deprive the N.S.A. of the argument of obviousness: the idea that what it is doing is plainly legal, plainly necessary, and nothing for decent people to worry about.” That’s about what I mean by Leon breaking the ice.

Ron Wyden: Obama Killed Anwar al-Awlaki with Authority Granted to Him

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As part of a letter asking the Administration to provide more details on its drone and/or targeting killing program, Senators Wyden, Udall, and Heinrich have judged the killing of Anwar al-Awlaki to be “a legitimate use of the authority granted the President.” (Adam Serwer first reported on this letter here). That judgement — as well as the Senators’ further comments on Awlaki — may provide further hints about the killing. Here’s the full paragraph:

Having carefully reviewed the matter, we believe that the decision to use lethal force against Anwar al-Aulaqi was a legitimate use of the authority granted to the President. As the President noted in his May 2013 speech at the National Defense University, Mr. al-Aulaqi clearly made a conscious decision to join an organized fighting force that was (and is) engaged in planning and carrying out attacks against the United States, including the 2009 Christmas Day bombing and the 2010 cargo plane plot. By taking on a leadership role in this organization, involving himself in ongoing operational planning against the United States, and demonstrating the capacity and intent to carry out these operations, he made himself a legitimate target for military action. Additionally, while the US government did not publicly acknowledge that it was attempting to kill Mr. al-Aulaqi, this fact was nonetheless widely reported in US and international media. This disclosure served as the equivalent of a wanted poster, and if Mr. al-Aulaqi had been a wrongly targeted innocent man he could have turned himself in and cleared his name. Additionally, alternative reasonable means to apprehend Mr. al-Aulaqi or otherwise deal with the threat that he posed do not appear to have been available. Finally, based on what we have been told, lethal force appears to have been used against Mr. al-Aulaqi in a manner consistent with applicable international law. [my emphasis]

Recall that for a full year, Ron Wyden kept asking whether, “the President’s authority to kill Americans [is] based on authorization from Congress or his own authority as Commander-in-Chief?” Once he saw the Awlaki memos in February, he stopped asking.

And while this paragraph doesn’t definitively answer that question, it does suggest an answer. This letter describes the President acting under authority “granted” to him, rather than inherent to the position. It describes Awlaki as having been the target of “military action.” And it concludes that, if everything they’ve been told is correct, the killing was “consistent with applicable international law.” All three of those details make it more likely the government operated under an AUMF justification than an Article II one. It also suggests that the military person pressed the actual button to kill Awlaki, given that there’s little way a CIA officer doing so would have been legal (and if that’s correct, then it means John Brennan has not made a single change to the drone program).

All that said, later in the letter, the Senators write,

We also believe the Executive Branch needs to clarify whether all lethal counterterrorism operations to date have been carried out pursuant to the 2001 Authorization to Use Military Force, or whether any have been based solely on the President’s own authorities.

So even while they suggest Awlaki’s killing was authorized under the AUMF, they still profess ignorance about whether all targeted killings have been. Also note they’re asking about “lethal counterterrorism operations,” not drone killing.

Intelligence Committees: Not Informed about Torture, Not Informed about Drone Casualties, Not Informed about US Person Spying

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Amnesty International and Human Rights Watch released reports on US drone killings today. For the moment, I’m going to outsource reading the reports to Sarah Knuckey’s excellent post.

Both reports (per Knuckey) point to individual drone strikes on civilians that may or probably violate international law.

Specific US strikes killed civilians in violation of the law and US policy.  These are the first major reports by each organization detailing field investigations into specific strikes.  HRW reviewed six strikes in Yemen (occurring between December 2009 and April 2013). HRW concluded that two of the strikes violated international law (pp. 54, 67), four may have (pp. 30, 39, 43, 60), and none of the six appeared to have complied with Obama’s May 2013 Presidential Policy Guidance (p. 89).  AI reviewed all 45 reported Pakistan strikes between January 2012-August 2013, and investigated nine in detail.  AI’s legal findings include that “evidence indicates” that an October 2012 strike unlawfully killed a grandmother and injured eight children (p. 23), and AI had “serious concerns” that a July 2012 strike that killed 18 and injured 22 (p. 24) may have been a war crime or extrajudicial execution (p. 27).  AI also investigated a number of strikes on apparent rescuers (those who came to the scene of a first strike to help the wounded), which it concluded may have been illegal (pp. 28-30).  Neither report seeks to assess the total number or rate of civilian casualties for all strikes.

[snip]

Investigations and accountability obligations. AI states that the US has legal obligations to investigate any cases where there are “reasonable grounds to indicate that unlawful killings have occurred,” and to prosecute, and remedy where appropriate (pp. 35-37).  HRW similarly states that the US has a duty to investigate violations of the laws of war, and that government secrecy effectively denies victims’ right to redress (p. 87).  Both reports also state the US should provide compensation or condolence payments for any civilian harm, but that neither organization is aware of the US having done this (AI, p. 39; HRW, p. 88).

This documentation of civilian casualties, of course, provides further evidence Dianne Feinstein and Mike Rogers’ claims about civilian casualties are false.

But we knew that.

Which means, in addition to the fact that we’re violating international law with some of our drone killings, we also are seeing a recurrent trend.

Even the CIA’s own lawyer agreed that CIA didn’t properly inform Congress, including the Intelligence Committees, about torture.

We’re learning that vast parts of the NSA’s spying — including spying that collects US person data — remains largely hidden from the Intelligence Committees.

And we have yet more proof they have been misinformed about drone killings.

Is there some dubiously legal program the Intelligence Community has fully informed Congress on?

CIA and the President: The Warm Embrace of Mutual Incrimination

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Brennan with TortureAndrew Sullivan is newly convinced — but surprised and confused — that President Obama is permitting John Brennan to hold up the release of the Senate Torture Report.

It is becoming clearer and clearer that one major power-broker in Washington is resisting the release of the Senate Intelligence Committee’s allegedly devastating report on the torture program run by the Bush-Cheney CIA. That major power-broker is the Obama administration.

You might be surprised by this, given the president’s opposition to torture and abolition of it. But the evidence is at this point irrefutable

[snip]

Brennan answers to the president, who has urged the release of the report.

So why the hold-up? That is the question.

Why is Obama allowing Brennan to undermine Obama’s own position? Why is the president allowing the CIA to prevent the very transparency he once pledged to uphold? I don’t know. But what I do know is that it is now Obama who is the main obstacle to releasing the Senate Report on Torture.

Mind you, the evidence was pretty irrefutable back in May, too, and became more so in July. Moreover, I’m not sure Obama has “urged the release of the report” — though Joe Biden has.

The explanation for Obama’s silence on this report seems pretty obvious if you read both Stephen Preston’s answers to Mark Udall’s questions and Obama’s past actions on torture. In short:

  • Torture was authorized by a Presidential Finding — a fact Obama has already gone to extraordinary lengths to hide
  • CIA has implied that its actions got sanction from that Finding, not the shoddy OLC memos or even the limits placed in those memos, and so the only measure of legality is President Bush’s (and the Presidency generally) continued approval of them
  • CIA helped the (Obama) White House withhold documents implicating the White House from the Senate (Sully does not note this fact, but Katherine Hawkins, whom Sully cited, did)

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

Indeed, I wonder whether the evidence in the Senate report showing CIA lied to the White House is not, in fact, cover for things some in the White House ordered CIA to do.

This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law.

Again, I think this is the way Presidential Findings are supposed to work: to implicate the President deeply enough to ensure he’ll protect the CIA for the crimes he asks it to commit.

But it’s not the way a democracy is supposed to work.

Stephen Preston: Covert Operations Don’t Need OLC Approval

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Jane Mayer has obtained a set of questions Mark Udall made CIA General Counsel Stephen Preston answer before he would release a hold on the latter’s confirmation as DOD General Counsel. They address CIA’s response to the Senate Intelligence Committee torture report. I will have more to say about these answers later (see also this post from Katherine Hawkins).

But for now I want to point to one of the few questions Preston really didn’t answer. While the non-answer is not at all surprising, it does have implications far beyond torture.

Udall noted,

The CIA response to the Committee Study states: “while it would have been prudent to seek guidance from OLC on the complete range of techniques prior to their use, we disagree with any implication that, absent prior OLC review, the use of the ‘unapproved’ techniques was unlawful or otherwise violated policy.”

The comment does two things.

First, it confirms CIA tortured before John Yoo authored memos authorizing that torture.

That confirmation is news, though we’ve long known it to be true.

But it also reflects CIA’s view that the legality of specific torture techniques did not stem from OLC review and authorization of them.

Udall asked Preston,

Please state whether you agree with this legal determination and explain your legal reasoning.

To which Preston responded,

On the particular point raised in (c) of the question, I also agree that CIA should have sought guidance from OLC with regard to the complete range of interrogation techniques prior to their use. I understand the Agency’s response to the SSCI’s study to acknowledge this point, noting only that failure to so engage with OLC did not, in and of itself, render any given technique unlawful.

Preston doesn’t actually say whether he agrees with the Agency’s legal determination or not, which was, after all Udall’s question. Which gets him out of answering Udall’s question about his legal reasoning.

But Preston has, for all intents and purposes, already answered that question in his speech last year on CIA’s use of lethal force. In it, he laid out was required for the use of lethal force (he doesn’t say it, but this includes lethal force against an American citizen) to be legal under US law.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack.

[snip]

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

As I’ve noted elsewhere, Preston doesn’t even acknowledge the National Security Act’s requirement that covert actions be legal under US law.

His speech makes it clear he agrees with the CIA’s response on torture. The CIA doesn’t need OLC approval for covert operations (which torture was during its early years), the implication seems clear, because the only thing needed to make covert operations legal is Presidential authorization with adequate Congressional notice.

This is a stance that most discussions on drones and torture miss. The CIA doesn’t believe it needs OLC memos — whether authorizing belly slaps or the assassination of Anwar al-Awlaki. It may consider it prudent to have OLC authorization in hand, mind you. But it does not believe such authorization gives covert operations any more legal sanction that simply the President’s authorization.

The NSA Hides Its Domestic Collection by Refusing to Count It

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In his speech at Cato last week Ron Wyden made it clear that when he asked Keith Alexander and James Clapper in advance of the reauthorization of the FISA Amendments Act for the number of Americans’ communications that had been collected under Section 702, he meant to elicit the estimates John Bates made in his October 3, 2011 opinion.

I spent much of 2012 asking the NSA and the DNI [Director of National Intelligence] whether anyone had done an estimate of how many American communications had been collected under section 702. The ODNI and the NSA insisted that such an estimate was impossible, but what they failed to tell the public was that the Fisa court had already done one.

Bates had the NSA conduct a manual review of a statistical subsection of 50,440 transactions collected via upstream collection between January and June 2011. (Note, it appears Bates may have had to raise dire warnings with “top DOJ officials” on July 8, 2011 before he got such a review.) He then annualized the results and estimated that the NSA was collecting up to 56,000 communications of Americans each year, made up of 46,000 communications consisting entirely of an American’s communication (Single Communication Transactions), and 10,000 in which their communication got included in a Multiple Communication Transaction swept up in the search.

Given what we’ve learned about the 2011 confrontation, Wyden’s serial requests for this information take on added importance for two reasons.

Administration never disclosed its domestic collection to the most Members of Congress

First, because the Administration very pointedly did not inform the bulk of Congress that NSA had been — and had been allowed to continue — collecting purely domestic communications from telecom switches. Neither the February 9, 2012 statement to the Senate Intelligence Committee nor the May 4, 2012 notice to Congress provided any indication that this violation involved collecting domestic communications (the December 8, 2011 statement to the House Intelligence Committee did, and both Committees, presumably as well as the Judiciary Committees, received the opinion itself, which makes that clear). It’s also not clear whether any of these notices included any mention of the SCTs, those single communication transactions involving just a US person communication.

Read more →

Dianne Feinstein Gives NSA Apologist Ben Wittes More “Oversight” Time than Ron Wyden

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Screen shot 2013-09-26 at 5.01.04 PMThe Senate Intelligence Committee hearing on NSA changes just finished.

It was about what you’d expect: Dianne Feinstein and Saxby Chambliss claimed they were making changes that don’t amount to much, at least four Senators filibustered themselves so they wouldn’t have to ask any questions (and therefore betray ignorance).

And of course, Ron Wyden and Mark Udall tried to ask questions.

The problem is, Dianne Feinstein had already deviated from normal Senate policy by giving Senators just 5 minutes to ask questions (that is the practice in the House, which is why House hearings are so much more stupid than Senate ones, generally).

Which meant that when Ron Wyden asked his first question — about geolocation — General Keith Alexander knew he could filibuster. As he did.

Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won’t be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?

Gen. Keith Alexander (Alexander): Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware, —

Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?

Alexander: We did. We sent that — as you’re also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper’s July 25th response to this question. So what I don’t want to do, Senator, is put out in an unclassified forum anything that’s classified there so I’m reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.

Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I’ll have additional questions on the next round. Thank you, Madam Chair. [my emphasis]

Wyden deferred his further questions to the second round.

But when the first round ended, DiFi said they didn’t have time for a second one, because they had to move onto the two non-governmental witnesses, Ben Wittes and Tim Edgar. Wyden tried to just ask his questions quickly, but Susan Collins objected.

Wittes — who recently admitted that he is an NSA apologist, according to the dictionary definition of the term — had an unfettered (and unsworn) opportunity to read his statement, which seemed to take up far more than the 5 minutes Wyden got to exercise oversight (the entire statement, with admittedly long footnotes, was 13 pages, though I’m not certain he read it all).

Effectively, then, Wittes’ mere presence served as a means to silence people asking real questions about NSA. DiFi claimed she had invited James Clapper and Keith Alexander to set the facts straight, but then made sure they’d be able to filibuster any effort to liberate a stray fact or two.

Next time he accuses Congress of being NAKED!, I do hope he remembers that his very presence has been used to prevent elected members of Congress from asking the questions Wittes is so sure the government is forthcoming in answering.

By “Secret Law” Did They Mean “Not Written Down”?

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For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.