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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?

Shorter Rupp: We Inform Members at Briefings They Can’t Attend Because They’re Too Busy

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Since it became clear Mike Rogers had chosen not to pass on the Administration’s notice of phone dragnet problems, I’ve been wondering if he did the same with any notice about the FISA Amendments Act upstream problems.

In response to a query from Politico, Rogers and his counterpart Dutch Ruppersberger seem to suggest they did not pass on the notice.

Moreover, the House leaders who held the keys to the report did not loudly broadcast its existence to the rest of the chamber. The chairman of the Intelligence Committee, Rogers, and the panel’s ranking Democrat, Dutch Ruppersberger of Maryland, declined to say whether they even had sent a letter in 2012 informing members there had been a critical document to view. Hill sources say they don’t recall anything of the sort.

More telling still, though, is Rupp’s justification for providing briefings instead of the actual white paper.

Party leaders did hold unclassified and classified briefings on FISA, but they occurred just days before the House’s September 2012 vote to reauthorize the law. The Republican briefing, for example, occurred only two days before the House approved the FISA Amendments Act, according to an invite obtained by POLITICO. Yet nowhere in the message, sent Sept. 7, 2012, is any mention of the White House white paper on FISA oversight — the document that detailed how the agency had erred in collecting U.S. communications.

Committee leaders, though, stress they acted appropriately. “Members were notified of the contents of the white paper through the briefing,” Ruppersberger told POLITICO. “We felt that a briefing was an appropriate way to notify members of this important issue so that they would have the opportunity to get all of their questions answered immediately.”

The congressman continued: “Some members chose to take advantage of a briefing and some did not. We thought offering a briefing shortly before the vote was held would work best with members’ busy schedules and keep the issue fresh in their minds as they cast their vote.” [my emphasis]

In his explanation, Rupp explains that members have busy schedules.

And his accommodation for those busy schedules was to require members who want to be informed on issues they didn’t receive notice of adjust their busy schedule to show up at one of two briefings, rather than go to a SCIF to read a document during whatever time is most convenient for them. Indeed, I’ve heard from members that that’s part of the problem with briefings — they require people to drop all their other important issues and cater to Rogers’ and Rupp’s schedules, instead. All to learn about issues not identified in the meeting notice.

I’d add two points to the Politico piece. First, while it notes that the notice pitched the 2011 compliance problems as an example of functional oversight, there’s another problem with it. It doesn’t appear to reveal that some agency (probably FBI) already did, and the NSA newly started searching on incidentally collected US person data. Thus, it left out one of the most crucial aspects of the 2011 opinion, that it permitted the access to US person communications without a warrant.

And then a persnickety issue. Politico makes this claim.

The Washington Post first revealed that lapse in PATRIOT Act oversight in August, which at the time Rogers acknowledged “very few members” had taken advantage of any related briefing opportunities.

As the reporter admitted he knew, the WaPo did not, in fact, “first” reveal the earlier failure to pass on the notice. The WaPo reporting followed my own and the Guardian’s, as well as several other sites. The whole issue of “first” is stupid, but why use it, particularly if you know it is factually inaccurate?

David Kris Joins Ben Wittes in His NAKED! Choir

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I know, I know. I’ve promised my substantive post on David Kris’ paper on the phone and Internet dragnets.

I know, I know. My repeated harping on the failure to inform the 2011 House freshmen about the dragnet is getting tedious.

But Kris dedicated 16 pages of his 67 page paper to arguing that the statutory requirements for briefing Congress about the dragnets (which Kris says require only Intelligence and Judiciary Committee briefing) have been met. He ultimately makes a half-hearted attempt to make the same argument Claire Eagan did about Congress adopting judicial interpretation. And he lays out the fatally weak case Ben Wittes has in the past to justify his wails of NAKED!

In doing so, Kris claims that, “all Members were offered briefings on the FISC’s interpretation.”

The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. There is a basic principle of statutory construction that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change,”208 as it did repeatedly with the tangible things provision.

[snip]

Of course, it would be ridiculous to presume that Congress adopted a classified interpretation of a law of which it could not have been aware. As described above, however, the historical record shows that many Members were aware, and that all Members were offered briefings on the FISC’s interpretation, even if they did not attend the briefings.

And yet, in all those 16 pages, he offers not one whit of evidence that the 93 members of Congress elected in 2010 (save the 7 on the Intelligence and Judiciary Committees) could have learned about the program save two briefings offered in May 2011.

Unless you count this argument, which suffers from a basic logic problem.

In an unclassified report published in March 2011, the Senate Intelligence Committee emphasized that it had offered a briefing to all Members of Congress concerning the bulk telephony metadata collection:

Prior to the extension of the expiring FISA provisions in February 2010, the Committee acted to bring to the attention of the entire membership of the Senate important information related to the nature and significance of the FISA collection authority subject to sunset. Chairman Feinstein and Vice Chairman Bond notified their colleagues that the Attorney General and the DNI had provided a classified paper on intelligence collection made possible under the Act and that the Committee was providing a secure setting where the classified paper could be reviewed by any Senator prior to the vote on passage of what became Public Law 111–141 to extend FISA sunsets. [my bold]

The entire membership of the Senate, after all, is not the same thing as “all Members of Congress.”

Ultimately, though, Kris concedes (citing just the white paper, and not citing me, the Guardian, any other reporting, or Justin Amash’s public statements to the effect) that just maybe this information wasn’t passed on in 2011 — but don’t worry, the Executive did its job!

Although the House Intelligence Committee did notify Members of the House of the classified documents and briefings in 2010 (when it was led by Chairman Sylvestre Reyes), it may not have done so in 2011 (when it was led by Chairman Mike Rogers). See White Paper at 18 n.13.

[snip]

Regardless of any intracongressional issues in 2011, as a matter of inter-branch relations, it is clear that the Executive Branch provided the materials with the intent that they be made available to all Members of Congress, as they had been in 2009.

Now, Kris is a much better lawyer than the flunkies who wrote the Administration’s far weaker White Paper on Section 215, and his argument here betrays not only that, but, I suspect, a hint that he realizes the flaw in his argument.

Notice in his claim that “all Members were offered briefings on the FISC’s interpretation,” he doesn’t argue all members got the Executive Branch notices on the program. He doesn’t argue that all members got briefed on the content on the notices. Rather, he claims only that they were offered briefings on the FISC’s interpretation.

Read more →

The People Who Work at Arthur Anderson NSA Are Such Nice People

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[youtube]uF40mZbrd7I[/youtube]

Back in 2001 or early 2002, I sat next to a lifetime Arthur Anderson accountant on a long plane ride. We talked about the Enron debacle and its ties to Anderson. She hadn’t worked the Enron account, and she insisted that Anderson itself was a highly ethical company — it was just the Enron account that was bad, she said. I gently raised the several other big accounting scandals Anderson starred in — Waste Management and Sunbeam both broke in 2001. But in her mind, that she and the people she worked with seemed like good people was all the proof she needed that Anderson was not a systematically unethical company.

That is, effectively, the defense that Bobby Chesney and Ben Wittes want to offer of the NSA after Chesney helped set up a special meeting of academics (plus Wittes) with the agency.

Our major takeaway concerns the dramatic disparity that separates the perception on the outside of what this agency does and NSA’s self-perception. To hear NSA folks talk about their compliance regime, for example, is to hear about an entirely different animal than the situation depicted in many new stories. To hear NSA folks discuss the relationship between encryption, cyber-security, and cyber offense is a different animal than to read news stories about how NSA breaks encryption. And so forth.  These conversations were all unclassified, but they vividly described a wide gap in understanding between NSA and the press, members of Congress, and the public regarding what the agency does and doesn’t do, how accountable and regulated it is, to what extent it complies with the law and how, and what the relevant law is.

That gap is unnecessary, or at least it need not be so wide. Read more →

NSA Bids to Expand Power Domestically to Track Chinese (!?) Terrorists

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While all sane people are trying to rein in NSA’s authority, the Gang of Four plans to use today’s parade of liars to expand NSA’s authority.

In explaining the need for this expanded authority, Dianne Feinstein and Mike Rogers claimed to the AP this is about terrorists.

The chairwoman of the Senate Intelligence Committee, Sen. Dianne Feinstein, D-Calif., told The Associated Press that her committee is drafting a bill that would amend the law’s Section 702 provision, which authorizes targeting non-Americans outside the U.S., to allow uninterrupted spying on a suspect for “a limited period of time after the NSA learns the target has traveled to the United States, so the government may obtain a court order based on probable cause.”

“Logically, someone under NSA surveillance, such as a terrorist, may present more interest to the government if they are inside the United States,” but the surveillance can be temporarily stopped while the NSA or FBI builds its case to permit uninterrupted spying, Feinstein said.

[snip]

“I call it the terrorist lottery loophole,” said Rep. Mike Rogers, D-Mich., the chairman of the House Intelligence Committee. “If you can find your way from a foreign country where we have reasonable suspicion that you are … a terrorist … and get to the United States, under a current rule, they need to turn it off and do a complicated handoff” to the FBI.

But further down, Rogers make it clear that this measure is designed to address the roamer problem that was revealed in an internal NSA audit earlier this year.

“It’s a foreign phone, it’s pinging off foreign networks,” Rogers said. “The suspect may turn it off. The suspect gets here. Now all of the sudden, the next thing they know, they (the NSA) are picking it up, but it’s in Brooklyn. … But they’ve been listening to it for two days. They have to turn it off, and then report it as an incident.”

We know from that audit report that this roamer problem actually declined during the period in question (though it did rise for Section 702 authority), contrary to NSA attempts to attribute the rise in violations to it. In addition, at least at that time, the problem primarily arose from Chinese targets entering the US, not Middle Eastern terrorists (the breakdown of violations from NSA’s geographical focus areas seems to support this). Indeed, the NSA made the embarrassingly false claim that the increase (which was actually a decrease) of roaming incidents was just about Chinese New Year.

The increase [sic] in incidents reported for 1QCY12 was due to an increase in the number of reported Global System for Mobile Communications (GSM) roamer1 incidents, which may be attributed to an increase in Chinese travel to visit friends and family for the Chinese Lunar New Year holiday.

So apparently we’re now beset by hordes of Chinese terrorists visiting the US for Chinese New Year we knew nothing about.

There’s one more problem with the claim that they will allow the NSA (or maybe the FBI) to track GSM phones without a warrant domestically. The Gang of Four claims the amended law would allow the NSA to continue tracking that GSM phone for “a limited period of time after the NSA learns the target has traveled to the United States.”

But the entire reason the roamer problem exists is because NSA only gets updates on location quarterly, so unless they learn about these Chinese terrorists’ travel by some content data, they don’t even know the phone is in the US. Read more →

Mike Rogers Continues to Thwart Fully Informed Representative Government

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Garance Franke-Ruta transcribes Justin Amash telling a remarkable story about another Mike Rogers’ attempt, back in August, to prevent elected representatives of American citizens from learning about details of the dragnet. After multiple tries, one of Amash’s colleagues finally won a game of 20 Questions with intelligence briefers.

And to show you how silly this whole thing gets, I had a colleague, one of my — I won’t say his name here, but he went to a number of classified briefings. And he asked a question and he never got a satisfactory answer. So he would just revise the question from briefing to briefing. By the time he got to to the third or fourth briefing he asked it in just the right way. He had figured out how to ask it in exactly the right way to get the answer he needed and of course, then they said, “Oh, you caught us. Yeah, we do do that.” Then we said, “Can you provide us with some more information?” and they said, “We’ll check, we’ll see if we can provide you with more information. We’ll see if we can provide you with a document” about this thing that he discovered.

And so we left that briefing and we said, “OK, we’re going to see something very interesting here.”

So when the Intelligence Community passed on this document to Intelligence Committee Chair Rogers to share with the victor of this particular game of 20 Questions and others, here’s how he distributed it. On August 3, he announced it would be available for 3 hours on August 4, on a Friday (when many members would already have left). He announced it on what Amash describes as a kind of spam folder.

They sent it through the “Dear Colleague” system. This is a system that, it’s almost like a spam folder, frankly. Read more →

How Mike Rogers’ Excessive Secrecy in 2011 Might Kill the Dragnet

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The FISA Court just released an August 29, 2013 opinion that reaffirms the court’s prior support for the Section 215 dragnet.

There’s a lot to say about the general legal interpretation of the opinion, which I may return to.

More importantly, though, the opinion relies on a demonstrably false claim to reaffirm the program: that Congress was briefed on the program.

Prior to the May 2011 congressional votes on Section 215 re-authorization, the Executive Branch provided the Intelligence Committees of both houses of Congress with letters which contained a “Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization” (Report).

[snip]

The Report provided extensive and detailed information to the Committees regarding the nature and scope of this Court’s approval of the implementation of Section 215 concerning bulk telephone metadata.

[snip]

Furthermore, the government stated the following in the HPSCI and SSCI Letters: “We believe that making this document available to all Members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215…” Id. HPSCI Letter at 1; SSCI Letter at 1. It is clear form the letters that the Report would be made available to all Members of Congress and that HPSCI, SSCI, and Executive Branch staff would also be made available to answer any questions from Members of Congress. Id. HPSCI Letter at 2; SSCI Letter at 2.

In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court’s Orders.

But as I have shown, because of Mike Rogers’ actions, a very large block of Congresspersons — the 93 freshmen legislators elected in 2010, save the 7 who were on the Intelligence or Judiciary Committees — appear to have had no such opportunity to learn about the program. Indeed, 65 members who voted in favor of PATRIOT reauthorization appear to have had no way of learning about the dragnet. Furthermore, we have documentary evidence that then FBI General Counsel Valerie Caproni (who was informed about abuses in the program on January 23, 2009), and then FBI Director Robert Mueller (who had to write a brief responding those abuses in August 2009) lied about whether there had been abuses in response to a question clearly designed to learn about the secret use of Section 215 during a May 13, 2011 hearing purportedly designed to replace the letter the Administration sent.

This opinion relies on a claim that has now been proven false (and actually had been by the time the opinion was written).

Judge Claire Eagan seems to know she’s basing her argument on false claims, because in a footnote she invokes the presumption of regularity.

It is unnecessary for the Court to inquire how many of the 535 individual Members of Congress took advantage of the opportunity to learn the facts about how the Executive Branch was implementing Section 215 under this Court’s Orders. Rather, the Court looks to congressional action on the whole, not the prepatory work of Individual Members in anticipation of legislation. In fact, the Court is bound to presume regularity on the part of Congress.

[snip]

The ratification presumption applies here where each Member was presented with an opportunity to learn about a highly-sensitive classified program important to national security in preparation for upcoming legislative action.

But even here, Eagan relies on a false premise, that all members of Congress had the opportunity to be informed about the dragnet.

The record shows — even the Administration White Paper shows — they did not.

I’m not entirely sure how we use these facts to overturn the dragnet. But either the FISC lives up to every claim that it’s a rubber stamp, or this decision must be revisited.

Update: Orin Kerr, who accepts the claims that I’ve shown to be false as true, still finds the argument about congressional consent unpersuasive.

Finally, I was deeply unimpressed by the last section of the opinion (pages 23-27), which argues that the FISC’s reading of the statute is presumptively correct because Congress knew about what the FISC was doing and didn’t amend the statute when it reenacted Section 215 in 2011. While it’s true that statutory reenactment has been construed a kind of silent approval of prior interpretations in some caselaw, I don’t know how on earth that can apply to secret court rulings by a district court that were merely made available to members of Congress, most of whom never learned of the opinions and would have no idea what they were looking at if they did. The idea underlying the doctrine of ratification is that established cases become part of the background understandings of the law. But it’s hard for me to see how decisions from a non-precedential secret court can form that background understanding, especially given that few members of Congress knew of the opinions and no one in the public did.

Update: And predictably, in a post called “Congress has no clothes,” Ben Wittes, who has been informed repeatedly that the record shows the House was not alerted to the 2011 letter, nevertheless gets his rocks off on Judge Eagan’s use of that false claim to argue the program is legal.

Perhaps the most remarkable feature of the opinion is Judge Eagan’s insistence that Congress cannot run away from her interpretation of the statute.

[snip]

All told, it’s an excellent opinion for the government. It affirms the program’s legality. It pulls the folding screen away from Congress even as members seek delicately to change, leaving them nakedly implicated in a program whose memory they seem so eager to abandon on the laundry pile.

Who’s naked here, Ben?

Imagine the Administration Lying to Congress about the Dragnet

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In a piece bemoaning the possibility that the dragnet programs created in secret might be scaled back now that citizens know what they entail, Ben Wittes lets his imagination run wild.

Imagine you were a high-level decision-maker in a clandestine intelligence agency. Imagine that you had played by the rules Congress had laid out for you, worked with oversight mechanisms to fix errors when they happened, and erected strict compliance regimes to minimize mistakes in a mind-bogglingly complex system of signals intelligence collection. Imagine further that when the programs became public, there was a firestorm anyway. Imagine that nearly half of the House of Representatives, pretending it had no idea what you had been doing, voted to end key collection activity. Imagine that in response to the firestorm, the President of the United States—after initially defending the intelligence community—said that what was really needed was more transparency and described the debate as healthy. Imagine that journalists construed every fact they learned in light of the need to keep feeding at the trough of a source who had stolen a huge volume of highly classified materials and taken it to China and Russia. [my emphasis]

Now, Ben sets up a few straw men here: journalists may have gotten some details wrong, but they’re probably doing better on accuracy than the Agencies that have all the information at hand, which continue to tell easily demonstrable lies. He suggests Obama is interested in debate, abundant evidence to the contrary. He excuses the NSA’s compliance problems because of complexity, when they introduced that complexity to make programs do what they legally weren’t supposed to (for example, allowing illegal access via 3 other systems and by 3 other agencies and inventing a pre-archive archive to skirt the rules in the case of the phone dragnet program). He suggests the NSA played by Congress’ rules, when in fact the FISC sets rules, and it says the government has repeatedly violated those rules and “misrepresented” claims about doing so.

But those straw men are nothing compared to the claim that those in the House who voted to defund the phone dragnet were “pretending it had no idea what you had been doing.”

The record shows that the 2011 PATRIOT Act extension was passed with the support of 65 people — enough to make the difference in the vote — who had had no opportunity to learn about the Section 215 dragnet except at hearings that didn’t provide notice of what they would present. Moreover, the record shows that when someone at one of (the only one of?) those hearings asked a question specifically designed to learn about problems with the dragnet, here’s what happened.

Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

Then FBI Director Robert Mueller and then-General Counsel Valerie Caproni (the Administration waited to release the dragnet materials Monday almost until the second Caproni got confirmed to lifetime tenure as a judge) gave that answer in spite of the fact that Mueller had to submit a declaration to Judge Reggie Walton to explain why the program was important enough to keep in spite of the many abuses. Walton ordered that declaration, in part, because the government’s explanations about their gross violations “strain[] credulity,” according to Walton. And one of the abuses involved FBI getting access to this data directly.

But FBI knows nothing, Colonel Klink.

And even in what notice the government made somewhat available to Congress (but which Mike Rogers did not pass on), it provided just a one paragraph description of the abuses that would take a page to lay out in skeleton bullet form.

In other words, the record shows that many of those who voted against the dragnet in fact had no idea what the government had been doing, both about the dragnet itself, and about the abuses of the dragnet program.

And note, when almost half the House voted to defund the dragnet, they still hadn’t been informed of the full extent of these abuses (because the Administration was withholding the relevant opinions).

Congress is moving to rein in a program that the Executive Branch operated illegally for 5 years, then operated with FISC sanction for 7 years while abusing the terms of that sanction for at least 3 years. In Wittes imagination, that’s a bad thing.

Update: Also note Valerie Caproni got briefed on these abuses January 23, 2009.

Syria: The Administration’s Attribution Failure

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Reuters confirms something that I have long suggested: the government doesn’t know who ordered the CW attack in Syria on August 21.

The Administration’s best case tying Bashar al-Assad to the attack, through the Scientific Studies and Research Council, consists of speculation that the group may be involved and apparent specific knowledge that the head of the organization was not involved.

A declassified French intelligence report describes a unit of the SSRC, known by the code name “Branch 450”, which it says is in charge of filling rockets or shells with chemical munitions in general.

U.S. and European security sources say this unit was likely involved in mixing chemicals for the August 21 attack and also may have played a more extensive role in preparing for it and carrying it out.

[snip]

U.S. officials say Amr Armanazi, a Syrian official identified as SSRC director in a State Department sanctions order a year ago, was not directly involved. [my emphasis]

This is what every government has used as central proof; yet even here they appear to just assume that because SSRC controls Assad’s CW they probably were involved.

Remember, we’ve already had anonymous admissions that the intelligence community isn’t really sure who controls Assad’s CW; nor do they know what happened when rebels took over a location where weapons had been stored.

Over the past six months, with shifting front lines in the 2½-year-old civil war and sketchy satellite and human intelligence coming out of Syria, U.S. and allied spies have lost track of who controls some of the country’s chemical weapons supplies, according to the two intelligence officials and two other U.S. officials.

U.S. satellites have captured images of Syrian troops moving trucks into weapons storage areas and removing materials, but U.S. analysts have not been able to track what was moved or, in some cases, where it was relocated. They are also not certain that when they saw what looked like Assad’s forces moving chemical supplies, those forces were able to remove everything before rebels took over an area where weapons had been stored. [my emphasis]

And months ago, the government worried a rogue officer might launch Assad’s CW.

So on multiple occasions the intelligence community has raised ways — rebel capture, non-authorized capture on the Syrian side, or rogue officer — in which CW might be released against Assad’s wishes. Yet their case tying this attack to Assad relies on mere assumptions that none of those things have happened, even while they know the chain of command did not operate as it normally would have.

With all that in mind, consider the implications in this Alan Grayson op-ed. He explicitly reports the Administration has provided no more than a 12-page classified summary. He suggests the summary doesn’t refer to individual social media reports and, given the rules imposed by Mike Rogers, he would be unable to take notes on which social media reports it referred and cross-check them.

Per the instructions of the chairman of the House Intelligence Committee, note-taking is not allowed.

Once we leave, we are not permitted to discuss the classified summary with the public, the media, our constituents or even other members. Nor are we allowed to do anything to verify the validity of the information that has been provided.

Remember, the Administration’s own map betrays some doubts that the social media reports, at least, would all hold up. Read more →

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

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Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

That exchange is, according to DOJ’s Congressional Affairs Office, the level of detail offered up at a May 13, 2011 briefing of the House Republican Caucus regarding the PATRIOT Act provisions the House would vote to reauthorize less than two weeks later.

The questioner — who is not identified — may have been talking about comments Russ Feingold made way back on October 1, 2009, as part of the previous reauthorization of the PATRIOT Act (remember, by this point, Feingold was no longer in the Senate). Here are the things Feingold said about Section 215 in that Senate Judiciary Committee markup.

I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today.

…

Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.
…

I want to specifically disagree with Senator Kyle’s [sic] statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.

Given the context, it is unclear whether Feingold referred to use of Section 215 for things they shouldn’t have, use of it to authorize bulk collection generally, or in the compliance issues identified in 2009 on which the Administration had recently briefed the Intelligence Committee. But his suggestion that the Senate Judiciary Committee was getting less detailed briefings than the Senate Intelligence Committee at that point is consistent with DOJ’s 2009 notice to Congress on the dragnet, which said, “The [compliance] incidents, and the Court’s responses, were also reported to the Intelligence Committees in great detail,” with no mention of similarly detailed briefings to SJC (the 2011 letter indicates that by that point SJC was getting detailed briefings as well). This, in turn, suggests he was referring to dragnet-related violations.

Regardless of what Feingold meant, though, he tied misuse very closely to the secret use of Section 215 to conduct dragnet collection of all Americans’ phone records. Feingold’s other public statements about Section 215 focus even more closely on the secret dragnet application of it.

In other words, this appears to have been a question attempting to get at the secret application of the PATRIOT Act that Feingold, along with Ron Wyden and people like Jerry Nadler, had been warning about. This appears to have been an attempt to learn about a topic that — in 2009, at least — DOJ had “agree[d] that it is important that all Members of Congress have access to information about this program” (DOJ didn’t include such blather in its 2011 notice).

Exactly 100 days before the briefing at which this question was asked, DOJ had sent House Intelligence Chair Mike Rogers (who appears to have convened this briefing) a letter noting, “In 2009, a number of technical compliance problems and human implementation errors in these two bulk collection programs were discovered as a result of Department of Justice (DOJ) reviews and internal NSA oversight.”

Yet in response to a query clearly designed to elicit both the existence of the dragnet program and details on problems associated with it, FBI Director Robert Mueller and then-General Counsel Valerie Caproni (and/or whatever staffers were with them) said, to the Bureau’s knowledge, there had been no abuses. Perhaps, then, as now, they’re relying on the claim that none of these compliance issues were willful — the letter said they weren’t intentional or bad-faith — to avoid telling members of Congress about problems with the program.

Remember, this is one of the (and may have been the only) briefings that Mike Rogers now claims provided adequate substitute for letting House members know about the letter describing the dragnet and the compliance problems associated with it. Rogers’ House Intelligence spokesperson, Susan Phalen, has claimed those briefings “not only covered all of the material in the letter but also provided much more detail.” (As far as I’ve been able to tell from the FOIA production to the ACLU, there was no similar briefing for the Democratic caucus, though FOIA production tends to be incomplete; one Democratic Congressman, Hansen Clarke, attended the Republican briefing.)

And DOJ’s own records of the briefing make it clear that when someone tried, however inartfully, to learn about the program, Mueller and Caproni obfuscated about the compliance issues and possibly the existence of the dragnet itself.

This is a concrete example of what both Justin Amash and Ron Wyden have described as a game of 20 questions briefers play in these briefings. The questioner raised one of the few public hints about the dragnet program to ask the FBI about it, and the FBI responded in a manner very similar to the way James Clapper did in March, when he lied to the SSCI.

Now, we don’t know what remains behind the redactions in the briefing, but there is one other piece of evidence that this briefing, at least, didn’t even touch on the dragnet. If you look at all 5 closed briefings turned over in production to ACLU, two — a February 28, 2011 briefing for SJC and a March 17, 2011 briefing for the House Intelligence Committee — were deemed classified “per OGA letter dated 4/26/2012.” The acronym “Other Government Agency” is usually used to refer to CIA, but in this context, where we now know NSA played a central role but revealing that role last year would have disclosed significant new details about the secret application of Section 215, it may well refer to NSA. Those briefings also redacted the identities of some briefers which, again, may be classified to hide the NSA’s role in this program.

If all this speculation is correct, then it means there was no mention of the NSA in the briefing for the Republican caucus. If there was no mention of NSA, then they really couldn’t have explained the program (both the 2009 and 2011 notices make extensive reference to the NSA).

In any case, what remains unredacted is quite clear. Someone at that briefing — the briefing that Mike Rogers’ staffer claims offered more information than had been provided in the DOJ letter — tried to learn about problems with the secret program. And they got stonewalled in response.

Was the person who asked this question and got an incomplete answer one of the 65 people who would go on to reauthorize the PATRIOT Act having had no way of learning about the program and its compliance problems?