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John Ratcliffe’s Lies about His Time at DOJ Raise New Questions about His Claim to Have Used Warrantless Searches

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Both NBC and ABC have stories laying out how two key claims about his work at DOJ that John Ratcliffe has used to get elected three times are lies. Less important for this post, when Ratcliffe repeatedly took credit for “arresting over 300 illegal [sic] aliens in a single day,” he was actually taking credit for a poultry worker bust that was led by ICE and involved four other US Attorneys offices and a slew of other investigative agencies.

This is an ICE-led investigation with support from the U.S. Attorneys’ Offices in the Eastern District of Texas, the Eastern District of Arkansas, the Eastern District of Tennessee, the Middle District of Florida, and the Northern District of West Virginia. Also aiding in the investigation are the DOL-OIG; the Social Security Administration’s Office of Inspector General; the U.S. Department of Agriculture’s Office of Inspector General; U.S. Customs and Border Protection; the U.S. Postal Service; the U.S. Marshals Service; the West Virginia State Police; and numerous other state and local agencies.

More interesting, however, is Ratcliffe’s claim that, “There are individuals that currently sit in prison because I prosecuted them for funneling money to terrorist groups.” As both NBC and ABC note, there’s not a shred of evidence that Ratcliffe ever prosecuted a terrorism case. His own campaign press release botches the timing and titles of this, seemingly conflating his time as (an unconfirmed) US Attorney with his role as chief of the anti-terrorism section for the US Attorney office he’d eventually run.

In 2008, Ratcliffe served by special appointment as the prosecutor in U.S. v. Holy Land Foundation, one of the nation’s largest terrorism financing cases.  During his tenure as the Chief of the Anti-Terrorism and National Security Section for the Eastern District of Texas he personally managed dozens of international and domestic terrorism investigations.

The statement his office gave ABC, which explains that the reference pertained to his appointment as Special Counsel investigating why the Holy Land Foundation case resulted in a mistrial, conflates those two roles even worse.

Ratcliffe’s office clarified that his status regarding the case was instead related to investigating issues surrounding what led to the mistrial in the first case.

“Because the investigation did not result in any charges, it would not be in accordance with Department of Justice policies to make further details public,” Rachel Stephens, a spokesperson for Ratcliffe, said. “However, Department of Justice records will confirm that as both Chief of Anti-Terrorism and National Security for the Eastern District of Texas from 2004-2008, John Ratcliffe opened, managed and supervised numerous domestic and international terrorism related cases.”

The timing here is critical, for reasons I’ll get into in a second. Ratcliffe was appointed Acting US Attorney sometime between May 20 and June 20, 2007; prior to that, he had been the First AUSA and the chief of the anti-terrorism and national security division in a division that didn’t see many national security cases (though in his campaigns, Ratcliffe would take credit for a big meth bust he mostly oversaw the sentencing of).

The mistrial of the first Holy Land Foundation trial was on October 23, 2007.

Ratcliffe was appointed US Attorney by Michael Mukasey sometime after he was confirmed as Attorney General on November 8, 2007.

Ratcliffe’s tenure as US Attorney ended after his replacement was confirmed on April 29, 2008. It’s unclear whether he stayed on after that; he joined a law firm leveraging John Ashcroft’s name the next April.

I’m interested in those dates because, in a 2015 debate over whether to prohibit back door searches of data collected using Section 702 of FISA, Ratcliffe claimed he had used warrantless searches as a terrorism prosecutor.

In full disclosure to everyone, I am a former terrorism prosecutor that has used warrantless searches, and frankly have benefitted from them in a number of international and domestic terrorism cases.

The implication was that he had done back door searches, but (as I noted at the time) he could only have done back door searches of Section 702 content if he stuck around after being replaced as US Attorney, because the FISA Amendments Act did not become law until July 10, 2008, after he was replaced as US Attorney. It’s true that Protect America Act was in place during part of the time he was US Attorney and during the time he would have been investigating the Holy Land Foundation case, but that remained in flux until February 2008 and DOJ was claiming, in the Yahoo challenge, not to permit back door searches.

If, as Ratcliffe suggests, his big terrorism “prosecution” was on the Holy Land case, it suggests he was using data from Protect America Act. Any back door searches in conjunction with that would be particularly controversial given that a bunch of Muslim groups were improperly named in a list of unindicted co-conspirators in a filing in the case, and some of them (such as CAIR’s Executive Director Nihad Awad) was under FISA surveillance through that period. In other words, if he used back door searches in the wake of the Holy Land mistrial, there’s a good chance he was engaged in what Carter Page insists in FISA abuse. This was also a period when there were a slew of violations with the Section 215 phone dragnet, which was almost certainly used to map out all of CAIR during the period.

One possible alternative is still worse. Ratcliffe started his anti-terrorism position in 2004. At the time, the George Bush warrantless wiretap program Stellar Wind — on which the back door searches of FAA were modeled — remained active (though in somewhat constrained form in the wake of the hospital confrontation). If Ratcliffe did back door searches on Stellar Wind data, he was part of Bush’s illegal surveillance program, and not just involved in “FISA abuse” but in crimes under FISA.

Given the number of lies he has already been caught in, and given his obvious confusion in any number of public hearings since, it’s quite possible he was just pretending to be an expert on a national security issue to fluff up his credibility. Perhaps he didn’t really understand the subject of the debate, and mistook normal criminal process for FISA surveillance.

That said, there’s frankly no good answer for this claim: the least damning explanation is confusion or puffery, the most damning is that he was involved in criminal surveillance.

But it’s a specific detail that demands an answer if Ratcliffe wants to supervise the entire intelligence community.

I Con the Record: Drop the Lawsuits and We’ll Release the Data Hostages

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I Con the Record just announced that the NSA will make the phone dragnet data it has “analytically unavailable” after the new system goes live in November, and unavailable even to techs three months later.

On June 29, 2015, the Foreign Intelligence Surveillance Court approved the Government’s application to resume the Section 215 bulk telephony metadata program pursuant to the USA FREEDOM Act’s 180-day transition provision. As part of our effort to transition to the new authority, we have evaluated whether NSA should maintain access to the historical metadata after the conclusion of that 180-day period.

NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015.  However, solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act, NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months.

Separately, NSA remains under a continuing legal obligation to preserve its bulk 215 telephony metadata collection until civil litigation regarding the program is resolved, or the relevant courts relieve NSA of such obligations. The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.

As I understand it, whatever data has been found to be two or three degrees of separation from a baddie will remain in NSA’s maw, but the data that has never returned off a search will not.

I’m pleasantly surprised by this, as I suspect it reflects a decision to accept the Second Circuit verdict in ACLU v. Clapper and to move to shut down other lawsuits.

As I noted, two weeks ago, the ACLU moved for an injunction against the dragnet, which not only might have led to the Second Circuit ordering the government to purge ACLU’s data right away (and possibly, to stop collecting all data), but also basically teed up the Second Circuit to remind the FISC it is not an appellate court. I worried that would lead the FISC to ask FISCR to review its dragnet decisions under a provision newly provided under the USA F-ReDux.

Shortly after ACLU filed its request for an injunction, the government asked for an extension to … today, which the court granted.

So I assume we’ll shortly see that filing arguing that, since the government has voluntarily set a purge date for all the dragnet data, ACLU should not get its injunction.

That doesn’t necessarily rule out a FISCR fast track request, but I think it makes it less likely.

The other player here, however, is the EFF.

I believe both ACLU and EFF’s phone dragnet client Council on American Islamic Relations, had not only standing as clients of dragnetted companies, but probably got swept up in the two-degree dragnet. But CAIR probably has an even stronger case, because it is public that FISC approved a traditional FISA order against CAIR founder Nihad Awad. Any traditional FISA target has always been approved as a RAS seed to check the dragnet, and NSA almost certainly used that more back when Awad was tapped, which continued until 2008. In other words, CAIR has very good reason to suspect the entire organization has been swept up in the dragnet and subjected to all of NSA’s other analytical toys.

EFF, remember, is the one NGO that has a preservation order, which got extended from its earlier NSA lawsuits (like Jewel) to the current dragnet suit. So when I Con the Record says it can’t destroy all the data yet, it’s talking EFF, and by extension, CAIR. So this announcement — in addition to preparing whatever they’ll file to get the Second Circuit off its back — is likely an effort to moot that lawsuit, which in my opinion poses by far the biggest threat of real fireworks about the dragnet (not least because it would easily be shown to violate a prior SCOTUS decision prohibiting the mapping of organizations).

We’ll see soon enough. For the moment, though, I’m a bit surprised by the cautious approach this seems to represent.

Update: Timeline on data availability fixed.

Update: Here’s the government’s brief submitted today. I’m rather intrigued by how often the brief claims USA F-ReDux was about bulk “telephony” data when it was supposed to be about all bulk collection. But I guess I can return to that point.

Update: They depart from describing USA F-ReDux as a ban bulk collection of telephony when they describe it as a ban on collection of bulk collection under Section 215, also not what the bill says.

Part of the compromise on which Congress settled, which the President supported, was to add an unequivocal ban on bulk collection under Section 215 specifying that “[n]o order issued under” Section 215(b)(2) “may authorize collection of tangible things without the use of a specific selection term that meets the requirements” of that subsection.

Update: This is key language — and slightly different from what they argued before FISC. I will return to it.

Plaintiffs assert that, by not changing the language of Section 215 authorizing the collection of business records during the transition period, Congress implicitly incorporated into the USA FREEDOM Act this Court’s opinion holding that Section 215 did not authorize bulk collection. See Pls.’ Mot. 7- 8. Plaintiffs rely on language providing that the legislation does not “alter or eliminate the authority of the Government to obtain an order under” Section 215 “as in effect prior to the effective date” of the statute. USA FREEDOM Act § 109, 129 Stat. at 276. That language does not advance plaintiffs’ argument, however, because the statute says nothing expressly about what preexisting authority the government had under Section 215 to obtain telephony metadata in bulk. It is implausible that Congress employed the  word “authority” to signify that the government lacked authority to conduct the Section 215 bulk telephony-metadata program during the 180-day transition period, contrary to the FISC’s repeated orders and the Executive Branch’s longstanding and continuing interpretation and application of the law, and notwithstanding the active litigation of that question in this Court. That is especially so because language in the USA FREEDOM Act providing for the 180-day transition period has long been a proposed feature of the legislation. It is thus much more plausible that the “authority” Congress was referring to was not the understanding of Section 215 reflected in this Court’s recent interpretation of Section 215, but rather the consistent interpretation of Section 215 by 19 different FISC judges: to permit bulk collection of telephony metadata.

All These Muslim Organizations Have Probably Been Associationally Mapped

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The Intercept has published their long-awaited story profiling a number of Muslim-American leaders who have been targeted by the FBI and NSA. It shows that:

  • American Muslim Council consultant Faisal Gill was surveilled from April 17, 2006 to February 8, 2008
  • al-Haramain lawyer Asim Ghafoor was surveilled under FISA (after having been surveilled illegally) starting March 9, 2005; that surveillance was sustained past March 27, 2008
  • American Muslim Alliance founder Agha Saeed was surveilled starting June 27, 2007; that surveillance was sustained past May 23, 2008
  • CAIR founder Nihad Awad was surveilled from July 17, 2006 to February 1, 2008
  • American Iranian Council founder Hooshang Amirahmadi was surveilled from August 17, 2006 to May 16, 2008

In other words, the leaders of a number of different Muslim civil society organizations were wiretapped for years under a program that should require a judge agreeing they represent agents of a foreign power.

But they probably weren’t just wiretapped. They probably were also used as seeds for the phone and Internet dragnets, resulting in the associational mapping of their organizations’ entire structure.

On August 18, 2006, the phone dragnet primary order added language deeming “telephone numbers that are currently the subject of FISA authorized electronic surveillance … approved for meta data querying without approval of an NSA official due to the FISA authorization.”

Given the way the phone and Internet dragnet programs parallel each other (and indeed, intersect in federated queries starting at least by 2008), a similar authorization was almost certainly included in the Internet dragnet at least by 2006.

That means as soon as these men were approved for surveillance by FISA, the NSA also had the authority to run 3-degree contact chaining on their email and phone numbers. All their contacts, all their contacts’ contacts, and all their contacts’ contacts’ contacts would have been collected and dumped into the corporate store for further NSA analysis.

Not only that, but all these men were surveilled during the period (which continued until 2009) when the NSA was running automated queries on people and their contacts, to track day-to-day communications of RAS-approved identifiers.

So it is probably reasonable to assume that, at least for the period during which these men were under FISA-authorized surveillance, the NSA has an associational map of their organizations and their affiliates.

Which is why I find it interesting that DOJ refused to comment on this story, but told other reporters that FBI had never had a FISA warrant for CAIR founder Nihad Awad specifically.

The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written.

Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet.

Awad’s organization, CAIR, is a named plaintiff in the EFF’s suit challenging the phone dragnet. They are suing about the constitutionality of a program that — the EFF suit also happens to allege — illegally mapped out associational relations that should be protected by the Constitution.

CAIR now has very good reason to believe their allegations in the suit — that all their relationships have been mapped — are absolutely correct.

Update: EFF released this statement on the Intercept story, reading, in part,

Surveillance based on First Amendment-protected activity was a stain on our nation then and continues to be today. These disclosures yet again demonstrate the need for ongoing public attention to the government’s activities to ensure that its surveillance stays within the bounds of law and the Constitution. And they once again demonstrate the need for immediate and comprehensive surveillance law reform.

We look forward to continuing to represent CAIR in fighting for its rights, as well as the rights of all citizens, to be free from unconstitutional government surveillance.

EFF represents CAIR Foundation and two of its regional affiliates, CAIR-California and CAIR-Ohio, in a case challenging the NSA’s mass collection of Americans’ call records. More information about that case is available at: First Unitarian Church of Los Angeles v. NSA.