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Hiding Yahoos: ORCON and the FISC Special Advocate

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Some weeks ago, I noted the language in James Clapper’s letter purportedly “supporting” Patrick Leahy’s USA Freedom Act making it clear he intended to retain the information asymmetry that currently exists in the FISA Court — specifically, ex parte communication with the court.

We note that, consistent with the President’s request, the bill estsablishes a process for the appointment of an amicus curiae to assist the FISA Court and FISA Court of Review in matters that present a novel or significant interpretation of the law. We believe that the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government. We are also aware of the concerns that the Administrative Offices of the U.S. Courts expressed in a recent letter, and we look forward to working with you and your colleagues to address these concerns.

The Yahoo documents released a few weeks back illustrate how this might work in practice.

We’ve known since January 2009 that Yahoo (which we then only knew was an Internet company) didn’t receive the materials — perhaps most importantly, the minimization procedures — it needed to adequately challenge the program.

The cover sheet to the ex parte appendix provided to the FISCR illustrates the range of things withheld from Yahoo’s attorney, Marc Zwillinger, who apparently had a Top Secret clearance. In addition to the minimization procedures for NSA and FBI, the government withheld the “linking” procedures used to identify targets (the titles of these documents are redacted in the released version, but this post explains why at least some must pertain to these procedures; note, I think the government also withheld these from Judge Reggie Walton at the FISC level!), and a January 15, 2008 Colleen Kollar-Kotelly FISC opinion assessing the adequacy of the original certifications.

Comparing two versions of Walton’s April 25, 2008 opinions — a version redacted for Yahoo’s use in 2008, and the version redacted for public release now — provides context on the key issues obscured or suppressed entirely from Yahoo’s view. (Note two things about these redactions: first, with the exception of language on the information the government demanded from Yahoo, we’re receiving more information than Yahoo’s cleared attorney received when he was fighting this case. And the older document actually includes two sets of redactions: the more faded redactions used for Yahoo, and a more opaque set done for this release, the latter of which hide details about the Directives given to Yahoo.)

Effectively, the government hid what they changed when they rewrote Certifications underlying their demands to Yahoo just 2 weeks before the law expired. A significant part of those changes involves getting FBI involved in the process (I increasingly suspect those January 29, 2008 Certifications are when the government first obtained official permission for FBI back door searches).

Notice of the new Certificates was given to Yahoo on February 16, 2008, the day PAA expired, and signed by then Solicitor General Paul Clement, though signed as Acting Attorney General (see page 81). One day earlier, Judge Walton had given the government an ex parte order requiring them to address whether the ex parte materials they had submitted to him in December “constitutes the complete and up-to-date set of certifications … applicable to the directives that are at issue in this proceeding.” Walton also required the government to provide notice to Yahoo they were going to submit a new classified appendix.

Apparently, Walton had gotten wind of the fact — but had not been told formally — that the government had submitted entirely new Certifications affecting their treatment of the data they would obtain from Yahoo. So he ordered them to update the record so his review actually considered the surveillance as it would be implemented.

I’ve listed most of the differences between the two memoranda below. While much of it pertains to prior classified decisions and the operation of FISC generally, the biggest sections redacted from Yahoo but released in part to us now describe the new certifications, including FBI’s new role in the process.  Of particular concern, the government withheld Walton’s comment admonishing the government for changing the certifications, “without appropriately informing the Court or supplementing the record in this matter until ordered to do so” (page 4), though footnote 4 and page 35 make it clear that Walton revealed some details of the government’s belated disclosures in a February 29 order for more briefing.

More troubling still, they hid Walton’s still significantly-redacted assessment that the changes in the Certifications would not change the nature of the government’s demand from Yahoo (page 38).

Neither type of amendment altered the nature of the assistance to be rendered by Yahoo,40

40 Yahoo has submitted a sworn statement that, prior to serving the directives on Yahoo, representatives of the government “indicated that, at the outset, it only would expect…

I wrote about these changing requests here. And while on paper the changing requests couldn’t have been a result of the changed Certification — Yahoo’s Manager of Legal Compliance described them in a January 23 submission, and the new Certifications were issued the following week — I find the timing, and the government’s failure to notice Walton on them, suspect enough that it’s the kind of thing that should have been briefed. Plus, as I’ll show in a follow-up post, I’m fairly certain the government hid  from both FISC and FISCR the degree to which this was about targeting Americans.

Once Walton learned that the government’s requests to Yahoo had changed between the date of Kollar-Kotelly’s initial approval and the expiration of the law, it seems it should have merited more direct briefing, but that would have required admitting that the changes put domestic law enforcement in the center of the program, which presents (or should present) significantly different Fourth Amendment concerns, notably increasing the importance of prior interpretations of the “significant purpose” language instituted under the PATRIOT Act.

In other words, not only did the ex parte nature of this proceeding hide the details Yahoo would have needed to make a robust Fourth Amendment argument, as well as evidence that the government was not being entirely forthcoming to FISC (which would have bolstered Yahoo’s separation of powers claim), it also hid what may be specifically pertinent details behind the government’s last minute changed certifications.

In theory, this shouldn’t happen with the USA Freedom Advocate, because the bill specifically requires the Advocate have access to certifications necessary for her to complete her duties.

(A) IN GENERAL.—If a court established under subsection (a) or (b) designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate—

[snip]

(ii) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate;

By comparison, the government was challenging Yahoo’s legal standing to take this challenge in the first place.

But I find the apparent basis for withholding information from Yahoo to be relevant. This memorandum, at least, was originally classified Top Secret/ORCON (Originator Controlled); the redacted memorandum given to Yahoo was classified Secret. That means that the changes arose, at least in part, from the ability of the originator (which may be DOJ’s National Security Division, given that Mark Bradley conducted the declassification review) to determine who gets the document. As I noted, there are two bases in USAF that would permit the government to withhold information, classification and privilege. Withholding information under an ORCON claim likely stems from both (though I am checking this).

So while the government should not be able to treat the advocate the same way they treated Yahoo (which, after all, FISC treated as a Congressionally sanctioned challenger to the orders, just as it would the advocate), they seem to have the prerogative to. (Update: I should add that Walton permitted the government to do all the ex parte briefing here under FISA’s ex parte briefing language; given that USAF doesn’t change that for any of the authorities in question, we should assume this precedent will apply to the advocate.)

To be clear, the USAF advocate is not one of the things that I believe sets back a slow reform process (as, for example, I believe the “transparency” provisions and some weakened minimization procedures do). I think it most likely that the advocate will evolve the way PCLOB has, which was first authorized in 2004, thwarted by Executive obstruction (on precisely these kinds of issues), reauthorized as a more effective body in 2007, then slow-walked again — partly by President Obama, though partly by Congress — for another 6 years. That is, if the advocate is at least as self-respecting as Lanny Davis (!), she will quit if the Executive ignores the intent of Congress that she have access to the materials she needs to do her job, exposing the inefficacy of the existing system. All that, of course, assumes she will cop onto what has been withheld. Clearly, Yahoo got a sense of it during this process, though FISC and FISCR seem to have realized only some of the other stuff withheld from them.

That is, judging by the PCLOB example, if all goes well and if USAF were to pass this year, we might have a fully functional advocate by 2023!

The Yahoo materials released show that the government withheld pertinent information from Yahoo, FISC, and FISCR until forced to provide it, and they never provided any of them with all the information they should have.

That it retains the ability to do so under USAF doesn’t bode well for the advocate. But that’s really just a subset to a larger issue that, even when authorized by Congress to provide oversight of this executive spying, the government has consistently, for years, been less than fully cooperative with FISC’s authority to do so.

As I’ve said, the surest way to reform surveillance is to eliminate the FISA Court.

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DOMA’s Day At The Supremes

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RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

Clement’s Departure

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As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.

[snip]

Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.

[snip]

During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

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