Posts

James Clapper Confirms VADM Mike Rogers Needlessly Obfuscated in Confirmation Hearing

/7 Comments/in /by

On Friday, James Clapper finally provided Ron Wyden an unclassified response to a question he posed on January 29, admitting that the NSA conducts back door searches. (via Charlie Savage)

As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA.

It has taken just 9 months for Clapper to admit that, contrary to months of denials, the NSA (and FBI, which he doesn’t confirm but which the Report makes clear, as well as the CIA) can get the content of Americans’ communications without a warrant. But Clapper’s admission that this fact was declassified in August should disqualify Vice Admiral Mike Rogers from confirmation as CyberComm head (I believe he started serving as DIRNSA head, which doesn’t require confirmation, yesterday). Because it means Rogers refused to answer a question the response to which was already declassified.

Udall: If I might, in looking ahead, I want to turn to the 702 program and ask a policy question about the authorities under Section 702 that’s written into the FISA Amendments Act. The Committee asked your understanding of the legal rationale for NASA [sic] to search through data acquired under Section 702 using US person identifiers without probable cause. You replied the NASA–the NSA’s court approved procedures only permit searches of this lawfully acquired data using US person identifiers for valid foreign intelligence purposes and under the oversight of the Justice Department and the DNI. The statute’s written to anticipate the incidental collection of Americans’ communications in the course of collecting the communications of foreigners reasonably believed to be located overseas. But the focus of that collection is clearly intended to be foreigners’ communications, not Americans. But declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications collected under Section 702 and conduct warrantless searches for the communications of specific Americans. Now, my question is simple. Have any of those searches been conducted? Rogers: I apologize Sir, I’m not in a position to answer that as the nominee. Udall: You–yes. Rogers: But if you would like me to come back to you in the future if confirmed to be able to specifically address that question I will be glad to do so, Sir. Udall: Let me follow up on that. You may recall that Director Clapper was asked this question in a hearing earlier this year and he didn’t believe that an open forum was the appropriate setting in which to discuss these issues. The problem that I have, Senator Wyden’s had, and others is that we’ve tried in various ways to get an unclassified answer — simple answer, yes or no — to the question. We want to have an answer because it relates — the answer does — to Americans’ privacy. Can you commit to answering the question before the Committee votes on your nomination? Rogers: Sir, I believe that one of my challenges as the Director, if confirmed, is how do we engage the American people — and by extension their representatives — in a dialogue in which they have a level of comfort as to what we are doing and why. That is no insignificant challenge for those of us with an intelligence background, to be honest. But I believe that one of the takeaways from the situation over the last few months has been as an intelligence professional, as a senior intelligence leader, I have to be capable of communicating in a way that we are doing and why to the greatest extent possible. That perhaps the compromise is, if it comes to the how we do things, and the specifics, those are perhaps best addressed in classified sessions, but that one of my challenges is I have to be able to speak in broad terms in a way that most people can understand. And I look forward to that challenge. Udall: I’m going to continue asking that question and I look forward to working with you to rebuild the confidence. [my emphasis]

I assume that now that Clapper has given him the okay to discuss unclassified topics with Congress, Rogers will now provide a forthright answer, all the while claiming he was ignorant about the answer at the time (fine! then make me DIRNSA because I know more about it!). But Rogers’ response went far beyond such an answer. He refused — not just in the hearing but even after it — to commit to answering a question with a completely unclassified answer. And as I pointed out in this post, his written answers were even more obfuscatory. I don’t get a vote. But I think this should disqualify him as a nominee.

Update: Here’s the exchange in Rogers’ questions for the record on back door searches.

What is your understanding of the legal rationale for NSA to search through data acquired under section 702 using U.S. Persons identifiers without probable cause?

Information acquired by NSA under Section 702 of FI SA must be handled in strict accordance with minimization procedures adopted by the Attorney General and approved by the Foreign Intelligence Surveillance Court. As required by the statute and certifications approving Section 702 acquisitions, such activities must be limite d to targeting non-U.S. persons reasonably believed to be located outside the United States . NSA’s Court-approved procedures only permit searches of this lawfully acquired data using U.S. person identifiers for valid foreign intelligence purposes and under the oversight of the Department of Justice and Office of Director of National Intelligence.

Ron Wyden, Refusing to Play Prosecutor, Says We Need to Ban Dragnet Collection of Purchase Records

/18 Comments/in /by

Meet the Press continues to spew absolute idiocy regarding the Snowden leaks. In an attempt to get Ron Wyden to call Edward Snowden a criminal today, Chuck Todd suggested because Wyden is a Senator he has the authority to decide who gets prosecuted or not.

Todd: Where are you on Snowden? Is he whistleblower? Is he a criminal? And if he’s brought back to the United States, should charges be brought up against him?

Wyden: Chuck, I decided a long time ago if somebody was charged criminally I wasn’t going to be just doing running commentary. But the bottom line is this is a debate that shouldn’t have started that way, it should have started with the House leadership– [interrupting]

Todd: But did he commit a crime? Did he commit a crime?

Wyden: I think that’s something for lawyers–

Todd: You’re in the United States Senate! You have the–you can’t tell me whether he committed a crime?!

Wyden: I’m not a prosecutor, I’m not a prosecutor. And I can tell you years ago in the House I asked the Tobacco executives whether nicotine was addictive, they were under oath, they said no, and the prosecutors said they couldn’t prove intent. Here’s what the bottom line is for me. The American people deserve straight information from the intelligence leadership. If the American people don’t get it, you can bet there’ll be other situations like this.

It must be tedious for Todd that the Fifth and Sixth Amendments might inhibit his ability to sow controversy on a Sunday show, but they nominally exist in this country.

And the rush to force Wyden to convict Snowden led him to ignore what Wyden actually said.

When Todd asked Wyden, the Senator described some other things that needed fixed. In addition to ending the bulk collection of phone records right away, Wyden said,

  • We’ve got to fix this back door search loophole in the Foreign Intelligence Surveillance Act
  • We ought to ban all dragnet surveillance on law abiding Americans–not just phone records, but also medical records, purchases and others

Todd interrupted Wyden as he talked about back door searches to prove he didn’t know what the fuck Wyden was talking about (he believed it entailed getting records without court review in an emergency). Later, having been told that the government was reading the emails of innocent Americans without a warrant and possibly collecting bulk records of their purchases, but proven ignorant about what that means, he asked Wyden if there was anything else that would make us feel insecure about our privacy.

Ron Wyden implied today that the government is collecting bulk records of our purchases (almost certainly in search of our beauty supply and pressure cooker purchases).

But revealing critical details like this is not what Chuck Todd believes Senators are for. Their job is to determine guilt or innocence on the Sunday shows.

RuppRogers Fake Dragnet Fix Would End (?) Bulk Firearm Record Collection, But Not Bulk Credit Card Record Collection

/1 Comment/in /by

I’m just beginning to go through the House Intelligence Fake Dragnet Fix bill — what I will henceforth call the RuppRogers Fake Dragnet Fix.

It does have some improvements — the kind of bones you throw into a legislation to entice members of Congress to back what is in fact a broad expansion of surveillance.

One of those is a prohibition on the use of FISA (presumably including Section 215) to engage in bulk collection of certain kinds of records:

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, education records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.

I find this interesting, for one, because it is yet another piece of evidence that suggests the government has been using Section 215 (and National Security Letters, probably) to make its own firearm registry, in defiance of congressional intent.

But I also find it instructive to compare this list:

  • Some but not all library and book records
  • Firearm sales records
  • Tax return (but not other tax) records
  • Education records
  • Some but not all medical records

With the list laid out in this letter from Ron Wyden and Mark Udall and others.

  • Credit card purchases
  • Pharmacy records
  • Library records
  • Firearm sales records
  • Financial information
  • Book and movie purchase records

I would assume from the difference that NSA was unwilling to give up certain kinds of bulk collection, notably credit card and non-tax return financial records.

I think the use of Section 215 to collect gun records is patently illegal, even though I might support a gun registry if passed legislatively. But if we’re going to roll back that collection, let’s roll back the bulk financial record collection as well.

NSA Conducts So Many Back Door Searches on US Persons It Would Be Impracticable to Approve Those Queries

/4 Comments/in /by

Update, 8/3/14: Given what we’ve subsequently learned about FBI’s substantial number of uncounted back door searches, Litt’s description of further controls as not practicable probably most directly relates to FBI, not NSA.

While there wasn’t as much as I’d like, the Privacy and Civil Liberties Oversight Board hearing today focused somewhat on the issue of back door searches: which are when NSA searches on US person data on “incidentally” collected data under Section 702 of FISA.

DOJ National Security Director Deputy AAG Brad Wiegmann even suggested we should call them queries, perhaps to obscure all the obvious problems with them as searches under the Fourth Amendment.

The most telling exchange, however, came when PCLOB Board Member Patricia Wald suggested that the FISA Court conduct the same kind of oversight over these backdoor searches that it is now doing pursuant to the changes in Section 215 President Obama made in January. (CSPAN won’t let me embed this yet but here’s a link.) ODNI General Counsel Robert Litt shot that idea down aggressively, stating that is is not practicable.

Patricia Wald: The President required, or, I think he required in his January directive that went to 215 that at least temporarily, the selectors in 215 for questioning the databank of US telephone calls–metadata–had to be approved by the FISA Court. Why wouldn’t a similar requirement for 702 be appropriate in the case where US person indicators are used to search the PRISM database? What big difference do you see there?

Robert Litt: Well, I think from a theoretical perspective it’s the difference between a bulk collection and a targeted collection which is that–

Wald: But I would think that, sorry for interrupting, [cross-chatter]  I would think that message since 702 has actually got the content.

Litt: Well, and the second point that I was going to make is that I think the operational burden in the context of 702 would far greater than in the context of 215.

Wald: But that would–

Litt: If you recall, the number of actual telephone numbers as to which a  RAS–reasonable articulaable suspcion determination was made under Section 215 was very small. The number of times that we query the 702 database for information is considerably larger. I suspect that the Foreign Intelligence Surveillance Court would be extremely unhappy if they were required to approve every such query.

Wald: I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the FISA Court would be the ultimate criteria.

Litt: Well I think it’s more than a question of convenience, I think it’s also a question of practicability.

NSA General Counsel Raj De, who has spent the better part of the last 9 months saying “it’s only metadata” went on to argue that somehow this “targeted” content program (which of course requires no advance review of selectors) is less intrusive than the metadata collection under Section 215.

Make up your damn mind!

To be fair, I suspect one of the issues is that after the Nidal Hasan attack (and this is just a very well educated guess), NSA rolled out a system whereby new communications between a targeted foreigner and an American automatically pulls up all previous communications involving that US person. That would count as a search, even though it would effectively feel like an automatic cross-referencing of all prior communications involving someone talking to a target, even if that is a US person.

Nevertheless, this means that NSA is conducting so many back door searches on US person data that it would be “impracticable” to actually give those searches some kind of review.

No wonder NSA refuses to give numbers on this practice to Ron Wyden.

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

/48 Comments/in , , , /by

In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

CIA Hacks Its Overseers

/26 Comments/in , , /by

In January, Ron Wyden and Mark Udall suggested that CIA was hacking into US computers.

Wyden asked (43;04) John Brennan whether the federal Computer Fraud and Abuse Act applied to the CIA.

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Minutes later, Mark Udall raised EO 12333′s limits on CIA’s spying domestically (48:30).

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

It appears the target of this hacking was the Senate Intelligence Committee itself.

The CIA Inspector General’s Office has asked the Justice Department to investigate allegations of malfeasance at the spy agency in connection with a yet-to-be released Senate Intelligence Committee report into the CIA’s secret detention and interrogation program, McClatchy has learned.

The criminal referral may be related to what several knowledgeable people said was CIA monitoring of computers used by Senate aides to prepare the study. The monitoring may have violated an agreement between the committee and the agency.

[snip]

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

Sen. Ron Wyden, D-Oregon, a panel member, apparently was referring to the monitoring when he asked CIA Director John Brennan at a Jan. 9 hearing if provisions of the Federal Computer Fraud and Abuse Act “apply to the CIA? Seems to me that’s a yes or no answer.”

NYT adds that CIA started spying on SSCI after learning it had accessed documents they didn’t want them to.

The action, which Mr. Udall did not describe, took place after C.I.A. officials came to suspect that congressional staff members had gained unauthorized access to agency documents during the course of the Intelligence Committee’s years-long investigation into the detention and interrogation program.

This is effectively the same treatment the CIA extends to Gitmo lawyers and defendants, where it spies to see what they’re saying about its torture methods.

But I bet it will be treated with more seriousness.

Jack Goldsmith’s Still Active Presidential Dragnet Authorization

/3 Comments/in , /by

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.

Of course, just yesterday both Dianne Feinstein and Mark Udall made it clear that no one at DOJ is paying close attention to EO 12333 — that is, Presidentially — authorized activities. So how would she know?

One way or another, the Executive Branch still has OLC sanction to conduct a phone dragnet off the books, using only Presidential authorization.

The question is whether, in addition to pointing to this authorization, Wyden is also suggesting that the Executive is currently using it.

(h/t to KH for alerting me that the QFRs had been posted)

How to Avoid Rubber-Stamping another Drone Execution: Leave

/15 Comments/in , /by

NPR’s Carrie Johnson reports that OLC head Virginia Seitz quietly left OLC before Christmas.

Virginia Seitz, who won Senate confirmation after an earlier candidate under president Obama foundered, resigned from federal service after two-and-a-half years on the job. The timing is unusual because her unit plays a critical role in drawing the legal boundaries of executive branch action —at a time when President Obama says he will do more to bypass a divided Congress and do more governing by way of executive order.

And while DOJ’s official line is that Seitz left entirely for personal reasons, two sources told Johnson the ongoing discussions about whether to drone kill another American were another factor.

Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the last several months: the question of whether and when the US can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al Qaeda, the sources said.

While a “law enforcement” source (but wait! the entire point of drone assassinations is they replace law enforcement with intelligence entirely!) suggests the decision has not yet been made.

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the OLC is continuing to do legal analysis on the issue and there was no firm conclusion to which she may have objected or disagreed.

Which is sort of funny, because Kimberly Dozier’s report on the American in question says DOD, at least, has made its decision.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

And remember, as I’ve pointed out, this potential drone execution target is differently situated from Anwar al-Awlaki, in that there appears to be no claim this one is targeting civilians in the US.

But let’s take a step back and consider some other interesting details of timing.

First, on November 29 of last year, Ron Wyden, Mark Udall, and Martin Heinrich released a letter they sent to Eric Holder asking for more clarity on when the President could kill an American.

[W]e have concluded that the limits and boundaries of the President’s power to authorize the deliberate killing of Americans need to be laid out with much greater specificity. It is extremely important for both Congress and the public to have a fully understanding of what the executive branch thinks the President’s authorities are, so that lawmakers and the American people can decide whether these authorities are subject to adequate limits and safeguards.

Retrospectively, it seems this letter may have pertained to this new execution target, particularly given the different circumstances regarding his alleged attacks against the US. I might even imagine this serving as a public demand that DOJ not simply rely on the existing Awlaki drone assassination memo, creating the need to do a new one.

Now consider how (currently acting OLC head) Caroline Krass’ confirmation hearing plays in. On December 17, Wyden asked her who had the authority to withdraw an OLC opinion (the opinion in question pertains to common commercial services in some way related to cybersecurity, but I find it interesting in retrospect).

Wyden: But I want to make sure nobody else ever relies on that particular opinion and I’m concerned that a different attorney could take a different view and argue that the opinion is still legally valid because it’s not been withdrawn. Now, we have tried to get Attorney General Holder to withdraw it, and I’m trying to figure out — he has not answered our letters — who at the Justice Department has the authority to withdraw the opinion. Do you currently have the authority to withdraw the opinion?

Krass: No I do not currently have that authority.

Wyden: Okay. Who does, at the Justice Department?

Krass: Well, for an OLC opinion to be withdrawn, on OLC’s own initiative or on the initiative of the Attorney General would be extremely unusual.

She said she did not “currently have that authority.” Was she about to get that authority in days or hours?

Then finally there are the implications for Krass’ confirmation. The leaks about this current drone execution target almost certainly came from Mike Rogers’ immediate vicinity. He’s torqued because Obama’s efforts to impose some limits on the drone war have allegedly made it more difficult to execute this American with no due process.

And while Rogers doesn’t get a vote over Krass’ confirmation to be CIA General Counsel, Dianne Feinstein and Saxby Chambliss do. And their efforts to keep CIA in the drone business may well have an impact on — and may have been motivated by — our ability to assassinate Americans.

I don’t recall Krass getting questions that directly addressed drone killing, though she did get some that hinted at the edges of such questions, such as this one:

Are there circumstances in which a use of force, or other action, by the U.S. government that would be unlawful if carried out overtly is lawful when carried out covertly? Please explain.

ANSWER: As a matter of domestic law, I cannot think of any circumstances in which a use of force or other action by the U.S. government that would be unlawful if carried out overtly would be lawful when carried out covertly, but I have not studied this question.

This seems to be a question she would have had to consider if she had any involvement in OLC’s consideration of a new drone execution memo.

All that said, she hasn’t yet gotten her vote (though any delay may arise from holds relating to the Senate Torture Report).

It just seems likely that — as we did in May 2005 when Steven Bradbury reapproved torture in anticipation of a promotion to head OLC — we’re faced yet again with a lawyer waiting for a promotion being asked to give legal sanction to legally suspect activity. My impression is that Krass has far more integrity than Bradbury (remember, she’s the one who originally imposed limits on the Libya campaign), so I’m only raising this because of the circumstances, not any reason to doubt her character.

It just seems like if you need lawyers to rubber stamp legally suspect activities, there ought to be more transparency about what promotions and resignations are going on.

Obviously Bogus Clapper Exoneration Attempt 5.0 Doesn’t Exactly Line Up with OBCEA 4.0

/9 Comments/in , /by

Office of Director of National Intelligence General Counsel Robert Litt, 45 days ago:

Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate.

When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified.

This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure.

Director of National Intelligence James Clapper, today:

But Clapper told The Daily Beast that he simply misunderstood Wyden’s question. At the time of the hearing last March, Congress had just finished consideration of a bill to renew the Foreign Intelligence Surveillance Act (FISA). Section 702 of that legislation gives the National Security Agency the authority to collect the electronic communications of non-U.S. persons. In his question, Wyden asked initially if the United States had collected “dossiers” on American citizens and referred to an answer to this question by then NSA director, Keith Alexander.

“I was not even thinking of what he was asking about, which is of course we now all know as section 215 of the Patriot Act governing the acquisition and storage of telephony business records metadata,” Clapper said. “Wasn’t even thinking of that.” The director of national intelligence said he thought Wyden’s question was actually about section 702 of FISA.

“The allegation about my lying and committing perjury I think are disproven by my labored amplification when I said, ‘if there is, it’s inadvertent collection,’ meaning when we’re collecting overseas under section 702, and if we inadvertently collect which we may not know at the time, U.S. persons data, that’s what I meant by inadvertent. That comment would make absolutely no sense whatsoever in the context of section 215.”

At the time of the Mitchell interview, the U.S. government was still in the process of declassifying elements of the FISA 702 program. “There is only one person on the planet who actually knows what I was thinking,” Clapper said of his testimony from last March. “Not the media, and not certain members of Congress, only I know what I was thinking.”

If only one person knows what he was thinking, then how was Robert Litt in any position to tell us Clapper was “surprised”?

And has Clapper decided he wasn’t “surprised” (perhaps because he had been briefed, not to mention had received months and months of letters, about the question), but instead simply “misunderstood” the intent of a question he had received months of letters about?

On the Day Ron Wyden Asked Whether NSA Complied with US v. Jones, It Collected 4 Billion Cell Location Records

/10 Comments/in /by

FasciaAs part of my new focus on leaked claims that the NSA can’t collect call call data because of problems stripping out cell location data, I want to look at the two exchanges Ron Wyden and James Clapper have had about cell location data.

First, at the Global Threats Hearing 2 years ago just after the US v. Jones decision ruled GPS tracking a search (watching Ron Wyden discomfit Clapper at Threat Hearings used to be my exclusive beat, you know), they had this exchange.

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]

We now have proof (as if Wyden’s hints weren’t enough of a tell, given his track record) that NSA was collecting cell location at the time of Wyden’s question. While the exchange took place after (according to NSA’s public claims) NSA’s domestic experiments with cell data under Section 215 ended, it suggests the actual NSA collection took place outside of Section 215.

As it happens, NSA’s own slide shows that on the day Wyden asked the question — January 31, 2012 — it collected around 4 billion cell location records (it was a slow day that day — NSA had been collecting closer to 5 billion records a day in 2012). That collection presumably would have been conducted under EO 12333.

Given that we know NSA collected around 4 billion cell location records that day, I’m particularly struck by Clapper’s emphasis on two things: First his suggestion that the legal analysis might be different for an intelligence use than for a law enforcement use. Given his claim the IC abided by the Fourth Amendment, I assume he imagines they have a Special Need to suck up all this cell location data that makes such searches “reasonable.”

Also note his reference to “foreign or domestic.” I’m guessing the IC was also busy arguing that, in spite of the US person cell locations they were ingesting, because they were doing so in a foreign location, it didn’t violate the Fourth Amendment.

With all that in mind, consider Wyden’s question to Keith Alexander on September 26, just before Alexander admitted to the past Section 215 experiments as some kind of limited hangout. Read more →