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The Government Doesn’t Want to Talk about Collecting Domestic Communications under FAA

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On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.

The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.

One clause notably missing from the almost-sequential list above is 1881a(b)(4), which reads,

[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)

Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.

And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:

An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States

[snip]

Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.

And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:

“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

[snip]

In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:

[snip]

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

[snip]

Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.

[snip]

But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.

Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.

Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.

Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.

And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.

Jane Mayer to Marc Thiessen: Your Guys’ Ignorance Got Us Attacked

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Jane Mayer has a great general purpose slapdown of torture apologist Marc Thiessen love letter to torture. She hits on most of the weaknesses of Thiessen’s arguments: his false claims about what prevented the 2006 liquid explosive plane plot, apologists’ very selective examination of what counts as an attack on American, the silence about Ibn Sheik al-Libi’s (and others’) false confessions, demonstrably false claims that no one at Gitmo was ever tortured.

But there’s a point she makes that really ought to be the focus of push back against all torture apologists: the Bush Administration ignored repeated warnings about the imminent al Qaeda attack in 2001, and any ignorance about al Qaeda–which Thiessen claims was general–belongs to Bush’s top leaders, not the intelligence community.

Thiessen, citing [Michael] McConnell, claims that before the C.I.A. began interrogating detainees the U.S. knew “virtually nothing” about Al Qaeda. But McConnell was not in the government in the years immediately before 9/11. He retired as the director of the National Security Agency in 1996, and did not rejoin the government until 2007. Evidently, he missed a few developments during his time in the private sector, such as the C.I.A.’s founding, in 1996, of its bin Laden unit—the only unit devoted to a single figure. There was also bin Laden’s declaration of war on America, in 1996, and his 1998 indictment in New York, after Al Qaeda’s bombing of two U.S. embassies in East Africa. The subsequent federal trial of the bombing suspects, in New York, produced thousands of pages of documents exposing the internal workings of Al Qaeda. A state’s witness at the trial, a former Al Qaeda member named Jamal al-Fadl, supplied the F.B.I. with invaluable information about the group, including its attempts to obtain nuclear weapons. (Fadl did so without any coercion other than the hope of a future plea bargain. Indeed, the F.B.I., without using violence, has persuaded dozens of other suspected terrorists to coöperate, including, most recently, the Christmas Day bomber.)

In order to make the case that America was blind to the threat of Al Qaeda in the days before 9/11, Thiessen skips over the scandalous amount of intelligence that reached the Bush White House before the attacks. In February, 2001, the C.I.A.’s director, George Tenet, called Al Qaeda “the most immediate and serious threat” to the country. Richard Clarke, then the country’s counterterrorism chief, tried without success to get Condoleezza Rice, Bush’s national-security adviser, to hold a Cabinet-level meeting on Al Qaeda. Thomas Pickard, then the F.B.I.’s acting director, has testified that Attorney General John Ashcroft told him that he wanted to hear no more about Al Qaeda. On August 6, 2001, Bush did nothing in response to a briefing entitled “Bin Laden Determined to Strike in the U.S.” As Tenet later put it, “The system was blinking red.”

(I would add that refusal of Thiessen’s precious CIA to share information about Nawaf al-Hazmi and Khalid al-Mihdhar also prevented us from acting on the biggest lead that could have prevented the attack.)

This point is not repeated enough, perhaps out of some sense of comity toward a guy, Cheney, who has spent the last year (really, his entire life) breaking every rule of comity in DC.

Out of ignorance of al Qaeda, arrogance that only loyal insiders should participate in setting security priorities, and plain old bad judgment about the potential threat of terrorists, the Bush Administration failed to act on clear warnings that we would be hit on 9/11. Those are, not surprisingly, precisely the same characteristics drove us to ignore our experts on interrogation and instead follow the word of a bunch of hucksters who wanted to get rich off of torturing other human beings.

Every time someone like Thiessen attempts to push his propaganda, we really ought to be asking why we should trust the propagandist of the guys who are still trying to overcompensate for having failed in the first place.

DNI McConnell to Intelligence Analysts: Go Talk to Juan Cole

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In a post on AJ Rossmiller’s Still Broken, I pointed out that bloggers probably knew more than Condi Rice leading up to the 2005 Iraqi elections because 1) we were reading Juan Cole, 2) we didn’t censor out news we didn’t like:

When AJ was asked how he got the 2005 election right, one of the things he pointed to, half-seriously, was the open source work of Juan Cole.

I began to write the explanation of our methodology, and I tried to resist the temptation to criticize other agencies while explaining how and why we did things differently. State, in particular, was very sensitive about their screwup, and I didn’t want to piss anybody off.

"Sir, can’t I just say that I copied and pasted Juan Cole?"

You see, those running the most powerful country in the world aren’t reading Juan Cole directly, or at least they weren’t. If they’re lucky, some analyst like AJ will read him and allow Cole’s expertise to influence his analysis. And if they’re lucky, that analysis might bubble up to decision-makers without being censored by the vetting process. But AJ’s book demonstrates that those are two very big "if’s."

Well, Director of National Intelligence Mike McConnell just conceded that AJ was right for reading Juan Cole.

In a new directive that challenges the insular culture of U.S. intelligence agencies, Director of National Intelligence J. Michael McConnell has ordered analysts to cultivate relationships with outside experts “whenever possible” in order to improve the quality of intelligence analysis.

The DNI’s July 16 directive on “Analytic Outreach” (pdf) establishes procedures for implementing such outreach, including incentives and rewards for successful performance.

“Analytic outreach is the open, overt, and deliberate act of an IC [intelligence community] analyst engaging with an individual outside the IC to explore ideas and alternate perspectives, gain new insights, generate new knowledge, or obtain new information,” the directive states.

“Elements of the IC should use outside experts whenever possible to contribute to, critique, and challenge internal products and analysis….”

“Sound intelligence analysis requires that analysts… develop trusted relationships” with “experts in academia; think tanks; industry; non-governmental organizations; the scientific world; …and elsewhere.”

Golly. Almost seven years after 9/11 and the intelligence community might just catch up to us DFH bloggers!

Shorter Mike and Mike: No, We Don’t Want Immunity Contingent on Actually Finishing the IG Report

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I think I’ve given as much consideration to what it would take to have a meaningful study of what the Administration did with its illegal wiretapping program as anyone (though also see this piece on immunity from Brian Beutler, one of the last pieces he did before he got shot last week). And I gotta say–the fact that DNI Mike McConnell and AG Michael Mukasey claim they’d advise Bush to veto the bill if it included Jeff Bingaman’s amendment–holding off on giving the telecoms immunity until after the IG study mandated by the bill was completed–makes me rather suspicious that Bush intends to spike the IG investigation (h/t Spencer).

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

[snip]

H.R. 6304 contains such protection, but the amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President’s other advisors, will recommend that the President veto any bill that includes such an amendment.

Now, I’d be charitable and buy Mike amd Mike’s claim that they’re just worried about a delay. Except that they make this completely cynical bid to suggest that the SSCI’s review of the program was adequate to expose what really happened with this program.

Deferring a final decision on retroactive [immunity] for 15 months while the Inspectors General complete the review required by H.R. 6304 is also unnecessary. The Senate Intelligence Committee conducted an extensive study of the issue, which included the review of the relevant classified documents, numerous hearings, and testimony. Read more →

Preview: Book Salon on Spies for Hire

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shorrock.jpgI wanted to give you all a heads up to a mid-week book salon I’ll be hosting today at 3PM ET over at the mother ship: Tim Shorrock’s Spies for Hire: The Secret World of Intelligence Outsourcing. I pushed to include Shorrock on the schedule because (as you’ll see in my post at 3) his book offers some key insights on FISA–and we seem to be gearing up for another FISA fight.

But there’s more than FISA that might interest you about the book (and about chatting with Shorrock). He gives the corporate back-story to:

  • Rick Renzi’s corruption
  • The domestic spying Counterintelligence Field Activity (CIFA)
  • CACI, the company whose contractors directed the torture at Abu Ghraib
  • Total Information Awareness
  • The domestic satellite surveillance Chertoff wants to use with DHS

Shorrock wraps that background story in a discussion both of the ideology behind the privatization of our intelligence function:

…as we’ve seen, money and profits are not the sole motivators for the corporations and executives who populate the Intelligence Industrial Complex. Because so many top executives are former intelligence officers themselves, many of their companies are motivated by politics as well. For CACI’s CEO, Jack London, that translates into a desire to "disseminate vital intelligence" for the fight against "Islamofascists." For ManTech CEO George Pederson, it’s a yearning for his company to be "on the battlefield," whether in Iraq, South Korea, or the Philippines. For the senior vice presidents of the big prime contractors, Booz Allen Hamilton and Science Applications International Corporation, it involves power, either as a way to influence future policy or make changes in the way the Intelligence Community is organized.

And a discussion of the subservience of public to private interest in such an Intelligence-Industrial Complex.

In the past, [former NSA Director Kenneth] Minihan said, contractors "used to support military operations; now we participate [in them]. We’re inextricably tied to the success of their operations." This new situation, he argued, presents corporations with "interesting opportunities" to create technologies that governments can take advantage of, "with all the complexities that exist in merging the interests of the private and public sector in the intelligence apparatus."

Merging the interests of the private and public sector. That astonishing phrase, which is now the mantra of the intelligence contracting industry, suggests the creation of a new mode of capitalism that specifically serves theneeds of government and its "intelligence apparatus." Read more →

Technical Glitches and Minimization

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A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Read more →