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

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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 →

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Is CIA Spying Domestically by Hacking Americans’ Computers?

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In addition to further details about CIA’s quashed review showing torture didn’t work and a commitment from James Clapper he would tell the American people if any of them had been back door searched, Ron Wyden and Mark Udall (along with Martin Heinrich) got one more curious set of details into the record at today’s Threat Hearing.

First, 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.

Now, it’s not certain these two questions are linked. Though obviously, hacking computers is an easy way to spy on people (as the NSA knows well).

Of course, the logic of the memo authorizing the Anwar al-Awlaki killing says that, so long as CIA has a presidential finding, even laws protecting American citizens cannot limit the CIA. And we learned 6 years ago that the Executive had secretly altered the text of EO 12333 without actually changing it, a practice John Yoo rubber stamped.

So, particularly given Brennan’s snitty answer about protecting this country, I’d assume it’s a safe bet that the CIA is spying domestically, and I’d posit that they may be hacking computers to do so.

Oh good. NSA was getting bored being the only Agency exposed for hacking.

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Dianne Feinstein Protects John Brennan from Being Called a Liar

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Surprisingly, the most contentious comments from today’s Senate Intelligence Committee hearing on were not directed at James “Too Cute by Half” Clapper, but instead John Brennan. Both Martin Heinrich (who used the Early Bird rule to ensure he got to speak early in the hearing) and Mark Udall hit on John Brennan’s comments about the SSCI torture report given what the CIA concluded in an internal review carried out under Leon Panetta. First, Martin Heinrich accused CIA of intimidating legitimate oversight.

[Heinrich] accused Brennan of making statements about the Intelligence panel’s interrogation report that are “meant to intimidate, deflect and thwart legitimate oversight.”

“There’s a chasm between the committee and Director Brennan on some of these issues, but it doesn’t appear to be in the director’s nature to accept those overtures, frankly,” Heinrich said.

“I respectfully and vehemently disagree with your characterization of the CIA’s cooperation with this committee,” Brennan responded.

Heinrich asked Brennan to explain why the Panetta review had been disbanded, wherein Dianne Feinstein interrupted and said that was no an appropriate question for the hearing, at which point Heinrich rebutted DiFi.

“Actually, it doesn’t fully answer the question,” Heinrich responded.

Later, Udall suggested that Brennan’s stonewalling on this internal report suggested he might have been less than forthcoming in his earlier answers about the torture report (remember, Brennan has been dodging Udall’s questions on the torture report for a year).

Udall then asked if the internal review contradicted Brennan’s statement, which the CIA director said was not appropriate to respond to in a public setting.

“Are you saying that the CIA officers who were asked to produce this internal review got it wrong? Just like you said the committee got it wrong?” Udall asked.

“Senator, as you well know, I didn’t say that the committee got it wrong,” Udall shot back. “I said there were things in that report I disagreed with, there were things that I agreed with and I look forward with working committee on the next steps in report.”

That’s when DiFi interrupted again, suggesting this wasn’t an appropriate discussion for this hearing.

Curiously, in spite of DiFi’s insistence that all mention of the Panetta report — or what led it to being quashed — take place in closed session, the CIA claims it might release their report (if they can also release their rebuttal of the Senate report). But they’re still fighting the release of the 6,000 page SSCI torture report.

They’re likely using the same dodge DOJ just used in a FOIA from Jason Leopold (who is also suing for some or all the same reports ACLU is). They said they can’t release the torture report because DiFi owns it (remember, Congress is immune from FOIA).

A report completed more than a year ago by a Senate panel that investigated the CIA’s torture program can only be released by the committee, which maintains complete “control” over the highly classified document, the Justice Department said in a court filing late Friday.

The Justice Department made that claim in response to a Freedom of Information Act (FOIA) lawsuit I filed against the agency last September, in which I asked for a copy of the 300-page executive summary of the Senate Select Committee on Intelligence’s (SSCI) much sought after $40 million torture report. The Justice Department asked a federal court judge Friday to dismiss my case, arguing it does not have the authority to disseminate the report because it is a “congressional record” as opposed to an “agency record,” which would make it subject to provisions of FOIA.

So DiFi doesn’t want Brennan to have to admit in public session that even the CIA found the CIA torture program didn’t work. And DiFi seems to be the single solitary hold-up for releasing her own Committee’s torture report.

Why is DiFi protecting John Brennan and his agency rather than overseeing them?

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The Common Commercial Services OLC Opinion Affecting Cyber Policy Is Over a Decade Old

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I’ve been meaning to go back to an exchange that occurred during Caroline Krass’ confirmation hearing to be CIA’s General Counsel back on December 17. In it, Ron Wyden raised a problematic OLC opinion he has mentioned in unclassified settings at least twice in the last year (he also wrote a letter to Eric Holder about it in summer 2012): once in a letter to John Brennan, where he described it as “an opinion that interprets common commercial service agreements [that] has direct relevance to ongoing congressional debates regarding cybersecurity legislation.” And then again in Questions for the Record in September.

Having been ignored by Eric Holder for at least a year and a half (probably closer to 3 years) on this front and apparently concerned about the memo as we continue to discuss legislation that pertains to cybersecurity, he used Krass’ confirmation hearing to get more details on why DOJ won’t withdraw the memo and what it would take to be withdrawn.

Wyden: The other matter I want to ask you about dealt with this matter of the OLC opinion, and we talked about this in the office as well. This is a particularly opinion in the Office of Legal Counsel I’ve been concerned about — I think the reasoning is inconsistent with the public’s understanding of the law and as I indicated I believe it needs to be withdrawn. As we talked about, you were familiar with it. And my first question — as I indicated I would ask — as a senior government attorney, would you rely on the legal reasoning contained in this opinion?

Krass: Senator, at your request I did review that opinion from 2003, and based on the age of the opinion and the fact that it addressed at the time what it described as an issue of first impression, as well as the evolving technology that that opinion was discussing, as well as the evolution of case law, I would not rely on that opinion if I were–

Wyden: I appreciate that, and again your candor is helpful, because we talked about this. So that’s encouraging. 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. That happens only in extraordinary circumstances. Normally what happens is if there is an opinion which has been given to a particular agency for example, if that agency would like OLC to reconsider the opinion or if another component of the executive branch who has been affected by the advice would like OLC to reconsider the opinion they will  come to OLC and say, look, this is why we think you were wrong and why we believe the opinion should be corrected. And they will be doing that when they have a practical need for the opinion because of particular operational activities that they would like to conduct. I have been thinking about your question because I understand your serious concerns about this opinion, and one approach that seems possible to me is that you could ask for an assurance from the relevant elements of the Intelligence Community that they would not rely on the opinion. I can give you my assurance that if I were confirmed I would not rely on the opinion at the CIA.

Wyden: I appreciate that and you were very straightforward in saying that. What concerns me is unless the opinion is withdrawn, at some point somebody else might be tempted to reach the opposite conclusion. So, again, I appreciate the way you’ve handled a sensitive matter and I’m going to continue to prosecute the case for getting this opinion withdrawn.

The big piece of news here — from Krass, not Wyden — is that the opinion dates to 2003, which dates it to the transition period bridging Jay Bybee/John Yoo and Jack Goldsmith’s tenure at OLC, and also the period when the Bush Administration was running its illegal wiretap program under a series of dodgy OLC opinions. She also notes that it was a memo on first impression — something there was purportedly no law or prior opinion on — on new technology.

Yet for some reason, it was not among the opinions Goldsmith chose to withdraw in 2004 (assuming he didn’t write it), nor will Eric Holder even respond to questions about why he won’t withdraw it now.

I wonder if Wyden has asked whether some opinion written since that time relies back on that 2003 opinion, just as the illegal wiretap programs relied back on Yoo’s Fourth Amendment stripping one?

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The Maneuvers to Get Ahead of the NSA Review Group Recommendations

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Here’s a quick summary of all the events happening in response to the NSA Review Group report:

Tuesday, January 7: James Clapper “and other Intelligence Community Leaders” meet with Geoffrey Stone, Cass Sunstein, and Peter Swire; SSCI holds closed briefing with Review Group

Wednesday, January 8: Obama meets with Intelligence Community leaders; Obama meets with PCLOB; NatSec Aides and Congressional staffers meet in Situation Room

Thursday, January 9: Obama meets with (reportedly invited) Dianne Feinstein, Saxby Chambliss, Mike Rogers, Dutch Ruppersberger, Pat Leahy, Chuck Grassley, Bob Goodlatte, John Conyers, Ron Wyden, Mark Udall, and Jim Sensenbrenner

Tuesday, January 14: Review Group testifies publicly before Senate Judiciary Committee

PCLOB, which I believe has a better understanding of the dragnet than several members of the Review Group, was supposed to present its own recommendations sometime this month, and the White House claims to be conducting its own internal review which is finishing up work.

I raise this schedule to point to the several times when Obama will meet with advocates for reform in a venue where some horse-trading can go on. Not only will he meet with PCLOB before their recommendations come out (as he met with the Review Group), but he will have the sponsors of legislation that would reform NSA and FBI’s counterterrorism programs, as well as Wyden and Udall, in a room with a larger number of opponents of reform.

Jay Carney said today Obama will introduce his own “reforms” before the State of the Union on January 28. But I wouldn’t be surprised if Obama moved to pre-empt these other discussions even earlier than that, as he did with the Review Group suggestion that the Director of the NSA position be split from the Cybercommand position.

Will he try to get an agreement from the legislative critics to withdraw their legislation if he makes some changes as executive prerogative?

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Obviously Bogus Clapper Exoneration Attempt 4.0

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[youtube]QwiUVUJmGjs[/youtube]

Wyden: Does the NSA collect any type of data, at all, on millions, or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly. [After 6:38]

Almost immediately after the first Edward Snowden leaks proved James Clapper lied when he told Ron Wyden the NSA doesn’t collect data of any kind on millions of Americans, Clapper explained that he meant the NSA didn’t vicariously pore through Americans’ emails.

“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.

That is, his first response was about reading emails in a certain smarmy fashion; he did not apparently deny collecting them.

Then, with a bit more time to think up an excuse, he admitted to Andrea Mitchell that he had been “too cute by half” but didn’t really explain what semantic excuse he had invented for himself.

First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

[snip]

And this has to do with of course somewhat of a semantic, perhaps some would say too– too cute by half. But it is– there are honest differences on the semantics of what– when someone says “collection” to me, that has a specific meaning, which may have a different meaning to him. [my emphasis]

Nevertheless, the implication, less than a week after Snowden’s first revelations, was that collecting Americans’ metadata doesn’t count until you access it, which seems to address the phone dragnet data (though would apply to incidentally collected US person data as well).

Perhaps because his Mitchell answer only increased the mockery, Clapper thought up a new answer, one he sent Senate Intelligence Committee Chair Dianne Feinstein 3 months after he lied to her committee.

I have thought long and hard to re-create what went through my mind at the time. Read more →

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NSA Failures and Terror Successes Drive the Dragnet

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Ryan Lizza has a long review of the dragnet programs. As far as the phone dragnet, it’s a great overview. It’s weaker on NSA’s content collection (in a piece focusing on Ron Wyden, it doesn’t mention back door searches) and far weaker on the Internet dragnet, the technical and legal issues surrounding which he seems to misunderstand on several levels. It probably oversells Wyden’s role in bringing pressure on the programs and treats Matt Olsen’s claims about his own role uncritically (that may arise out of Lizza’s incomplete understanding of where the dragnet has gone). Nevertheless, it is well worth a read.

I think it most valuable for the depiction of Obama’s role in the dragnet and its description of the ties between the war on terror and perceptions about the dragnet. Take this account of Obama’s decision not to embrace transparency during the PATRIOT Act Reauthorization in 2009-10. Lizza describes Wyden pressuring Obama to make information on the dragnets available to Congress and the public (we know HJC members Jerry Nadler, John Conyers, and Bobby Scott were lobbying as well, and I’ve heard that Silvestre Reyes favored disclosure far more than anyone else in a Ranking Intelligence Committee position).

But then the UndieBomb attack happened.

The debate ended on Christmas Day, 2009, when Umar Farouk Abdulmutallab, a twenty-three-year-old Nigerian man, on a flight from Amsterdam to Detroit, tried to detonate a bomb hidden in his underwear as the plane landed. Although he burned the wall of the airplane’s cabin—and his genitals—he failed to set off the device, a nonmetallic bomb made by Yemeni terrorists. Many intelligence officials said that the underwear bomber was a turning point for Obama.

“The White House people felt it in their gut with a visceralness that they did not before,” Michael Leiter, who was then the director of the National Counterterrorism Center, said. The center was sharply criticized for not detecting the attack. “It’s not that they thought terrorism was over and it was done with,” Leiter said, “but until you experience your first concrete attack on the homeland, not to mention one that becomes a huge political firestorm—that changes your outlook really quickly.” He added, “It encouraged them to be more aggressive with strikes”—drone attacks in Yemen and Pakistan—“and even stronger supporters of maintaining things like the Patriot Act.”

Obama also became more determined to keep the programs secret. On January 5, 2010, Holder informed Wyden that the Administration wouldn’t reveal to the public details about the N.S.A.’s programs. He wrote, “The Intelligence Community has determined that information that would confirm or suggest that the United States engages in bulk records collection under Section 215, including that the Foreign Intelligence Surveillance Court (fisc) permits the collection of ‘large amounts of information’ that includes ‘significant amounts of information about U.S. Persons,’ must remain classified.” Wyden, in his reply to Holder a few weeks later, expressed his disappointment with the letter: “It did not mention the need to weigh national security interests against the public’s right to know, or acknowledge the privacy impact of relying on legal authorities that are being interpreted much more broadly than most Americans realize.” He said that “senior policymakers are generally deferring to intelligence officials on the handling of this issue.”

Curiously, Lizza makes no mention of Nidal Hasan who, unlike Umar Farouk Abdulmutallab, actually succeeded in his attack, and like Abdulmutallab, had had communications with Anwar al-Awlaki intercepted by the NSA (and FBI) leading up to the attack. Weeks before the UndieBomb attack, Pete Hoekstra had already started criticizing the Obama Administration for not responding to Hasan’s emails to Awlaki, and Hasan’s attack led to more tracking of Awlaki (and, I suspect, Samir Khan’s) online interlocutors. I also suspect that, because of certain technical issues, the Hasan experience led to increased support for suspicionless back door searches.

But whether or not the UndieBomber alone or in conjunction with the Hasan attack was the catalyst, I absolutely agree Obama got spooked.

The question is whether Obama took the correct lesson from the UndieBomb, in particular. While the Hasan attack definitely led to real lessons about how to better use content collection (FISA and PRISM), the UndieBomb case should have elicited conclusions about having too much data to find the important messages, such as Abdulmutallab’s text to Awlaki proposing Jihad. (Note that Hoekstra’s blabbing about the Awlaki taps may have led AQAP to encrypt more of their data — as Awlaki was alleged to have done with Rajib Karim — which would have led to legitimate concerns about publicizing NSA techniques.) With the UndieBomb, NSA purportedly had advance warning of the attack that didn’t get read until after the attempt. Why not? And why wasn’t that Obama’s main takeaway?

And the National Security people still seem to be taking the wrong lessons. Here’s Matt Olsen and DiFi’s version of the National Security crowd’s latest fearmongering, that we need dragnets even more so now because the terrorist group has dispersed.

As core members of Al Qaeda were killed, the danger shifted to terrorists who were less organized and more difficult to detect, making the use of the N.S.A.’s powerful surveillance tools even more seductive. “That’s why the N.S.A. tools remain crucial,” Olsen told me. “Because the threat is evolving and becoming more diverse.”

Feinstein said, “It is very difficult to permeate the vast number of terrorist groups that now loosely associate themselves with Al Qaeda or Al Nusra or any other group. It is very difficult, because of language and culture and dialect, to really use human intelligence. This really leaves us with electronic intelligence.”

Olsen says the problem is, in part, that Al Qaeda is “less organized.” DiFi says one problem we have “permeating” terrorist groups is language and culture and dialect and her solution to that is to use “electronic intelligence.” While electronic intelligence — and specifically metadata — provides a way to compensate for linguistic failures (the NSA uses structure to identify which are the important conversations), in terrorist attack after terrorist attack (as well as CW attack) we turn out not to have been watching the right content feeds. And if we don’t have the linguistic skills, we’re likely not going to understand the messages correctly in any case.

And these are less organized groups! Are they really any more effective than crime gangs at this point, and crime gangs in countries far away with little means to access the US?

But rather than saving money on the dragnet and working instead on shoring up our cultural and linguistic failures, this failure is instead seen as another excuse to sustain the dragnet.

It’s clear that terror — whether NSA has failed or not — serves as a evergreen excuse for the dragnet. The real question is whether it should.

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Ron Wyden: Obama Killed Anwar al-Awlaki with Authority Granted to Him

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As part of a letter asking the Administration to provide more details on its drone and/or targeting killing program, Senators Wyden, Udall, and Heinrich have judged the killing of Anwar al-Awlaki to be “a legitimate use of the authority granted the President.” (Adam Serwer first reported on this letter here). That judgement — as well as the Senators’ further comments on Awlaki — may provide further hints about the killing. Here’s the full paragraph:

Having carefully reviewed the matter, we believe that the decision to use lethal force against Anwar al-Aulaqi was a legitimate use of the authority granted to the President. As the President noted in his May 2013 speech at the National Defense University, Mr. al-Aulaqi clearly made a conscious decision to join an organized fighting force that was (and is) engaged in planning and carrying out attacks against the United States, including the 2009 Christmas Day bombing and the 2010 cargo plane plot. By taking on a leadership role in this organization, involving himself in ongoing operational planning against the United States, and demonstrating the capacity and intent to carry out these operations, he made himself a legitimate target for military action. Additionally, while the US government did not publicly acknowledge that it was attempting to kill Mr. al-Aulaqi, this fact was nonetheless widely reported in US and international media. This disclosure served as the equivalent of a wanted poster, and if Mr. al-Aulaqi had been a wrongly targeted innocent man he could have turned himself in and cleared his name. Additionally, alternative reasonable means to apprehend Mr. al-Aulaqi or otherwise deal with the threat that he posed do not appear to have been available. Finally, based on what we have been told, lethal force appears to have been used against Mr. al-Aulaqi in a manner consistent with applicable international law. [my emphasis]

Recall that for a full year, Ron Wyden kept asking whether, “the President’s authority to kill Americans [is] based on authorization from Congress or his own authority as Commander-in-Chief?” Once he saw the Awlaki memos in February, he stopped asking.

And while this paragraph doesn’t definitively answer that question, it does suggest an answer. This letter describes the President acting under authority “granted” to him, rather than inherent to the position. It describes Awlaki as having been the target of “military action.” And it concludes that, if everything they’ve been told is correct, the killing was “consistent with applicable international law.” All three of those details make it more likely the government operated under an AUMF justification than an Article II one. It also suggests that the military person pressed the actual button to kill Awlaki, given that there’s little way a CIA officer doing so would have been legal (and if that’s correct, then it means John Brennan has not made a single change to the drone program).

All that said, later in the letter, the Senators write,

We also believe the Executive Branch needs to clarify whether all lethal counterterrorism operations to date have been carried out pursuant to the 2001 Authorization to Use Military Force, or whether any have been based solely on the President’s own authorities.

So even while they suggest Awlaki’s killing was authorized under the AUMF, they still profess ignorance about whether all targeted killings have been. Also note they’re asking about “lethal counterterrorism operations,” not drone killing.

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Was DOJ Hiding a Section 215 Gun Registry from Congress?

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Among other documents, ODNI released  on Monday all the Attorney General Reports on Section 215 use from 2005 to 2011 (2006, 2007, 2008, 2009, 2010, 2011, 2012).

This is the classified version of a report that also gets released in unclassified form as part of a larger report to Congress on FISA numbers (2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012; ODNI did not release the report covering 2012 because it lay outside the scope of ACLU’s FOIA). And the paragraph of each of these reports that lays out the following information remains redacted in all of them.

(3) the number of such orders either granted, modified, or denied for the production of each of the following:

(A) Library circulation records, library patron lists, book sales records, or book customer lists.

(B) Firearms sales records.

(C) Tax return records.

(D) Educational records.

(E) Medical records containing information that would identify a person.

Nevertheless, the reports show us two new things.

Screen shot 2013-11-22 at 8.52.29 AM

First, while we knew the number of modifications has gone up significantly in the last three years (we now know that many of the modifications in 2009 had to do with phone dragnet violations), the latest reports ODNI released say this:

The FISC modified the proposed orders submitted with forty-three such applications in 2010 (primarily requiring the Government to submit reports describing implementation of applicable minimization procedures).

The FISC modified the proposed orders submitted with 176 such applications in 2011 (requiring the Government to submit reports describing implementation of applicable minimization procedures).

Julian Sanchez had speculated that’s what was going on in a post (I can’t find the link right now) noting that NSL use had halved while Section 215 use had gone up. Remember, too, the government has not released a 2010 opinion on Section 215 that may explain why the FISC got much more involved in policing the government’s minimization.

Still, it is almost certain that the need to double check government minimization stems from bulk collections. If those bulk collections were also on a 90-day renewal cycle, then we might be looking at 44 bulk collection programs in 2011.

One more thing. As was reflected in the ACLU Vaughn Index, it appears DOJ never provided these reports to Congress starting with the report covering 2008. It did do so for the report covering 2011, but the report isn’t dated, so it’s not clear it was done in April 2012, when it should have been provided to Congress. Furthermore, that production was cc’ed to John Bates, which the tardy August 16, 2010 production of FISC opinions also was, which makes me wonder whether Bates had to force the Executive to fulfill the requirements in the PATRIOT Reauthorization (both these reports and the pre-2008 “significant constructions of law” requirement stems from the 2006 reauthorization). [4/19/14 correction: The “significant constructions of law” stems from the FISA Amendments Act]

Now, maybe DOJ was just being lazy in not fulfilling the clear legal requirement. But given that it seems to have had no problem fulfilling the requirement for unclassified numbers during the same period, I wonder whether DOJ just didn’t want to reveal that it was collecting on one or more of the specified categories, such as firearms sales records (though I’ve long wondered whether DOJ was also collecting DNA records).

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Was Adel Daoud Targeted Off of a Back Door Search of Traditional FISA Collection?

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Daoud Adel is a 20-year old US citizen from suburban Chicago who was charged last year in an FBI sting in which he allegedly tried to set off a car bomb outside a night club. Last year, during the debate on FISA Amendments Act reauthorization, Dianne Feinstein named his case directly, suggesting he had been busted using the legislation before the Senate. His legal team first demanded the FAA material she suggested existed back in May. And in September, they requested discovery for materials relating to FAA.

The government, however, strongly suggests none of the communications used to charge him were collected under FAA. It even suggests he misunderstands the meaning of DiFi’s comment.

Any discovery based on the FAA is unwarranted here because the FAA is simply not at issue in this case. As the Government explained in a previous filing, it “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.” (DE 49, at 2).

[snip]

The defendant’s claim that the Government should disclose “the nature of the FAA surveillance in this case even, for instance[,] Defendant’s communications themselves were not intercepted” is perplexing. (DE 52, at 15 n.11). If Daoud’s communications were not intercepted, or his facilities not targeted, he would not be aggrieved and have no basis to challenge the collection. The Government sees no legal relevance to his broad discovery request.

Moreover, the defendant has also made multiple claims, in this motion and others, based on his interpretation of a single public remark. While the Government appreciates the defendant’s position in litigating FISA-related matters, it offers that the defendant may misunderstand this public remark, which is not a revelation that has any legal implication.

[snip]

As the Government has explained, this case singularly involves “traditional” FISA surveillance. [my emphasis]

Soapbox Orator’s comments in response to one of my posts on back door searches led me to examine the government’s response closely and I now suspect Daoud may have been identified using a back door search on traditional FISA collection.

Much of this debate centers on comments DiFi made on December 27, 2012, which seemed to suggest the 8 cases she named involved FAA.  But those comments were in response to comments Ron Wyden had just made. In that speech Wyden described (among other problems with FAA) back door searches.

The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans’ phone calls and e-mails, there are surprisingly few rules about what can be done with it.

For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.

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