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Christopher Wray and the Myth Created by Parallel Construction

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At the Friday Heritage Foundation Section 702 event, FBI Director Christopher Wray argued that reforming Section 702 (he suggested, illogically, making any reforms) would rebuild the wall taken down after 9/11. (Here’s the transcript, which unfortunately doesn’t include the Q&A period.)

I think back to the time that I was in government before on 9/11, right before 9/11, right after 9/11. I think about how hard dedicated men and women throughout the intelligence community worked to try to tear down the walls that had prevented us from connecting all the information that might have been able to prevent those attacks. As I said at the beginning, listening to this debate right now, watching some of the potential ideas that are being floated strikes me as eerily similar to people, well-intentioned, starting to put bricks into a wall.

There are problems with that argument (which have as much to do with our national myopia about the risks we face and how we’ve combatted them as anything else). But I’m grateful Wray made an effort to avoid the ad hominem attacks some of Section 702’s other boosters have resorted to.

Still, Wray’s response to concerns about using Section 702 in criminal prosecutions got dangerously close to that. In response to a question from David Shedd, Wray said that concerns about the topic derive from a myth. Those of us with such concerns, Wray said, are just “confused.”

There’s been a little bit of myth development in that space. When we talk about the criminal side, I think it’s important to distinguish between the tip and lead kind of scenario that I’m describing, which is where Section 702 is so important, and the prosecution end of it, where the information of any sort is being used. Section 702 has not been used for any traditional criminal case as evidence in a trial or anything like that ever, except in about 10 terrorism prosecutions. So the notion that there are criminal agents using Section 702 to make garden variety criminal cases, that’s just myth. It is not happening.

I’m reluctant to try to guess as to how people who are confused get confused. My goal is to get them straight.

To claim this is a myth, of course, Wray has to rely on a bogus number of defendants who have gotten their legally required 702 notice — ten counterterrorism cases — thereby pretending that 702 hasn’t had a key role in far, far more criminal cases, and not just in counterterrorism cases, but also counterespionage (including nation-state hacking) and counterproliferation cases.  (Interestingly, defendants are only known to have gotten notice in eight cases, meaning Wray may have revealed two more where defendants got non-public notice.) Plus, as I’ve noted, FBI submitted notice about attorney-client violations to FISC in nine cases in the time since DOJ largely stopped giving defendants notice.

The numbers just don’t add up.

Which means, in significant part, what Wray calls a myth is, in reality, parallel construction, a myth of a different sort, the myth that law enforcement tells defendants about where their cases came from or why certain approaches were used with the case, the myth created by DOJ’s secret interpretations about how they deal with legally mandated FISA notice. The myth that decides Keith Gartenlaub is a counterintelligence threat because of the conversations he conducts on Skype, a PRISM provider, with his in-laws, only to scrub all mention of those Skype conversations (and, DOJ presumably maintains in its secret policies on the issue, the legal obligation to give notice) once you go to trial.

Wray goes on to blithely describe how content collected without a warrant comes to define the tips FBI Agents get, even before any evidence has been collected.

There’s the information over here, that the Agent is seeing in real time in the US. That’s the tip or the lead. And then there’s the information in the database. And it’s the connection that’s important. Let me talk about what’s in the database, first, and what isn’t. What’s in the database — that 4.3% [of the NSA’s targets] — that’s not evidence of garden variety criminal conduct. The only stuff that’s in that is information about foreigners, reasonably believed to be overseas, for foreign intelligence purposes. So that’s foreign intelligence information in there. That’s not evidence of … I don’t know, pick an example, you know, child porn, or something else. It could be very serious, but that’s not what’s in there. So the Agent over here, if he’s in national security investigator is connecting national sec–something that he thinks is national security information with foreign intelligence information. The criminal agent, who is not doing anything related to national security, he’s not looking to try to find some national security hook for his case. He’s just trying to make sure — let’s say he’s got a cigarette smuggling case — one of the things we know is that terrorist groups have used things like cigarette smuggling to finance their activities. There are cases that Department of Justice has brought over the years on that very thing. Cigarette smuggling is a crime. Well, it could be handled one way but if it turns out that cigarette smuggling that’s designed to support Hezballah, that’s different. It needs to be viewed differently. But we won’t know if we just build a wall between the Agent and the information that’s sitting right over here in the FBI database. [my emphasis]

Wray makes another error here, in claiming that “That’s not evidence of … I don’t know, pick an example, you know, child porn,” in the information FBI deems foreign intelligence information. Either that, or the government should very quickly inform the Ninth Circuit of that fact, because Keith Gartenlaub is as we speak challenging the use of a physical search FISA order to turn nine-year old child porn lying unaccessed on his hard drives into foreign intelligence information and thereafter into a criminal prosecution.

But it’s not just Gartenlaub and a traditional FISA search. Given that 702 PRISM collection obtains not only emails, but also attachments and data stored in the cloud, it will obtain a lot more than communications, including photos. Those photos may be garden variety sexy photos shared between adults (indeed, photos of that kind were also introduced in Gartenlaub’s case). But they also may be abusive photos of children. The Intelligence Community will use both kinds — as well as all the other kinds of non-email information obtained by targeting email accounts — for its foreign intelligence purposes.

It’s fairly unfortunate that, three years after FBI asked for and obtained a change in its Section 702 minimization procedures so as to be able to easily deal with child porn discovered using it, the FBI Director claimed publicly that Section 702  data doesn’t include child porn.

Of course it does.

Whether we should want the FBI to immediately prosecute child porn discovered in the name of foreign intelligence information or, first (as happened with Gartenlaub) use it to try to flip someone to become an informant, is a policy discussion we’re not having.

But the reason we’re not having that discussion is because of the other myth being told, the myths about prosecutions that have used parallel construction to hide the whys and wherefores of the case, in large part to sustain the myth Wray is telling here, that those tips and that warrantless collection have nothing to do with each other.

I appreciate Wray’s efforts to avoid dodging the key issues by attacking those of us who recognize the 702 needs reform. But what is really going on is that the myths the government tells about how intelligence is used serves to make a real policy discussion difficult (for people like me, who know the criminal cases) and impossible (for staffers and members of Congress, who don’t). Wray and others in the intelligence community have grown so accustomed to these myths (see this Bob Litt exchange for an example), that they don’t even seem to see the implications of parallel construction for our claims to due process anymore. If we’re confused about the use of 702 information in criminal proceedings, the government is confused about how metasticizing parallel construction rots the guarantees in our Constitution.

I imagine FBI would like to defer this discussion once again; pretending reformers are the ones inventing myths is a good way to do that. But it’s important, this time around, that we call the government on the myths they tell, even while they claim we’re the ones who’re confused.

Update: When I asked FBI about the discrepancy in numbers (8 versus 10), a spox emphasized that Wray said “about” 10 cases have used 702 evidence.

Chuck Grassley Finally Shows Concern about Parallel Construction — Affecting Trump

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As I’ve said repeatedly, I think Chuck Grassley’s concerns about the Steele dossier — and FBI’s refusal to answer questions about it — generally have merit. That continues with his latest letter to FBI.

Effectively, he’s worried that because Steele shared the dossier with MI6, the FBI might effectively be parallel constructing intelligence that ultimately came from Steele, and so from a oppo research dossier.

There is another concern about Mr. Steele’s and Fusion GPS’s work that the FBI needs to address.  Public reports indicate that the FBI received the dossier and has used it in the Russia investigation.  However, it appears that the FBI, the media, and various Congressional offices were not the only recipients of the dossier prior to its publication.  In court filings by Mr. Steele’s attorneys in London, he admitted that he had passed at least some contents of the dossier to at least one foreign government – the United Kingdom.[1]

Media reports have also claimed that foreign governments passed along information to the United States about purported contacts between Trump associates and Russians.  Given that Mr. Steele also distributed the dossier’s contents to at least one foreign government, it is possible that this political dossier’s collusion allegations, or related allegations originating via Mr. Steele, may have also been surreptitiously funneled into U.S. intelligence streams through foreign intelligence sharing.  If so, that foreign information would likely have ended up within the FBI’s investigation of allegations of collusion between Trump associates and Russia.  However, given that foreign intelligence agencies carefully guard their sources and methods, it may not have been clear to the FBI that the foreign reporting was actually based on the work of Mr. Steele and Fusion GPS.

If this in fact happened, it would be alarming.  Mr. Steele’s dossier allegations might appear to be “confirmed” by foreign intelligence, rather than just an echo of the same “research” that Fusion bought from Steele and that the FBI reportedly also attempted to buy from Steele.  It is even more alarming in light of what we are learning about the allegedly unregistered Russian foreign agents who Fusion GPS and Glenn Simpson were working with to undermine the Magnitsky Act and who met with Trump family and campaign officials last summer.

The Committee must understand what steps the FBI has taken to ensure that any foreign information it received and used in the Russia investigation, beyond the dossier itself, was not ultimately sourced to Mr. Steele, his associates such as Fusion GPS, or his sub-sources.

It’s a fair point — as mentioned, he’s effectively describing parallel construction, which the FBI uses all the time to hide the ultimate source for its evidence on defendants (though usually, that process involves obtaining subpoenas to hide what kind of foreign intelligence it relies on).

So I’m grateful the Chair of the Senate Judiciary Committee has finally decided to turn his focus on a process that is badly abused, to the detriment of due process in this country.

I just wish he expressed the same concern for less famous targets, rather than just the President.

DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere

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Screen Shot 2014-04-18 at 11.02.49 AMAs I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.

Of particular interest is this investigation.

Administrative Subpoenas

The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.

The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.

Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.

Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.

Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

[snip]

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.

But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.

After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Read more →