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Using Domestic Surveillance to Get Rapists to Spy for America

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The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.

DiFi’s Secret Law

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Steven Aftergood linked to this colloquy on the PATRIOT Act which reveals a lot about Ron Wyden and Mark Udall’s efforts to force the government to admit how it’s suveilling Americans. The colloquy basically puts not just the agreement, but the circumstances that went into the agreement, into the Congressional record.

After some Senatorial blathering (mostly Wyden and Udall talking about how swell DiFi is for making this agreement), DiFi starts the colloquy by describing a meeting the night before (that is, on Wednesday night) between her, Wyden, Udall, Jeff Merkley, and Sheldon Whitehouse.

Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and Senator Udall for their comments. We did have a meeting last night. We did discuss this thoroughly. The decision was that we would enter into this colloquy, so I will begin it, if I may.

These Senators and I, along with the junior Senator from Oregon, Mr. Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator from Rhode Island, Mr. Whitehouse met last night to discuss this amendment, the legal interpretation of the Foreign Intelligence Surveillance Act provisions and how these provisions are implemented.

Note the presence of Merkley and Whitehouse, which I’ll return to.

DiFi then talks about how great the collection program in question is.

I very much appreciate the strong views Senator Wyden and Senator Udall have in this area, and I believe they are raising a serious and important point as to how exactly these authorities are carried out. I believe we are also all in agreement that these are important counterterrorism authorities and have contributed to the security of our Nation.

At which point Wyden interrupts and basically says (still speaking in Senate blather, mind you), “um, no.”

Mr. President, I have enormous respect for my special friend from California, the distinguished chairwoman of the Intelligence Committee. I have literally sat next to her for more than a decade. We agree on virtually all of these issues, but this is an area where we have had a difference of opinion.

Wyden and Udall basically both then repeat their warnings about how the government is doing something with PATRIOT not explicitly supported by the law. At which point DiFi pipes up to say, alright already, I’ve conceded you have a point but don’t talk about this here! Talk about it in my secret committee!

Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that these are important issues and that the Intelligence Committee, which is charged with carrying out oversight over the 16 various intelligence agencies of what is called the intelligence community, should be carried out forthrightly. I also believe the place to do it is in the Intelligence Committee itself.

At which point she lays out the terms of the agreement: the Senate Intelligence Committee will have a hearing on the secret law right after the Memorial Day break, and if the Committee agrees to make a fix, they will amend the Intelligence Authorization.

I have said to these distinguished Senators that it would be my intention to call together a hearing as soon as we come back from the Memorial Day break with the intelligence community agencies, the senior policymakers, and the Department of Justice to make sure the committee is comfortable with the FISA programs and to make changes if changes are needed. We will do that.

So it would be my intention to have these hearings completed before the committee considers the fiscal year 2012 intelligence authorization bill so that any amendments to FISA can be considered at that time.

The fact is, we do not usually have amendments to the intelligence authorization bill, but I believe the majority leader will do his best to secure a future commitment if such is needed for a vote on any amendment. I have not agreed to support any amendment because at this stage it is hypothetical, and we need to look very deeply into what these Senators have said and pointed out last night with specificity and get the response to it from the intelligence committee, have both sides hear it, and then make a decision that is based not only on civil liberties but also on the necessity to keep our country safe. I believe we can do that.

Note DiFi’s mention of “specificity,” which I’ll return to.

After DiFi finishes, Wyden pipes in to say that if the Intelligence Committee doesn’t decide to make a fix, then Harry Reid has promised that Wyden and Udall can introduce their amendment on a different bill, one DiFi doesn’t have control over.

Senator Udall and I have discussed this issue with Senator Reid. Senator Reid indicated to the chairwoman and myself and Senator Udall that we would have an opportunity through these hearings–and, of course, any amendments to the bill would be discussed on the intelligence authorization legislation, which is a matter that obviously has to be classified–but if we were not satisfied, if we were not satisfied through that process, we would have the ability to offer an amendment such as our original one on the Senate floor.

Read more →

Happy Memorial Day! Remember Your Government Will Be Tracking with Whom You Celebrate this Weekend

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As I’ve said repeatedly in discussions of the secret interpretations of the PATRIOT Act provisions that Ron Wyden and Mark Udall complained about, those interpretations probably claim the government can collect mass information on geolocation.

Julian Sanchez lays out why that is almost certainly the case in this worthwhile post. The three main points (there are several less crucial ones) are:

  • The government has been using a hybrid approach–using a combination of pen registers and 2703(d) orders–to get geolocation data in criminal investigations with some support from courts; using pen registers with Section 215 orders could offer the same “hybrid” authorization
  • The structure of Ron Wyden’s legislation aiming to rein in geolocation tracking starts with restrictions on FISA, which the criminal statute incorporates, but also includes explicit prohibitions on using pen registers and Section 215 to get geolocation information
  • TruePosition’s LocInt service markets the ability to determine proximity, but doing so would rely on widespread collection of geolocation information

In other words, Sanchez lays out both the legal means we know the government has used to track geolocation, maps the legal means Wyden is attempting to use to curtail those legal means, and describes the technical necessity for widespread collection.

Which is a pretty compelling argument that the big rush to extend PATRIOT is about making sure this geolocation tracking doesn’t shut down over the Memorial Day weekend. So rest assured your government is tracking where you’re vacationing this weekend and with whom.

The PATRIOT Act Vote: One Quarter of the Way to a Fourth Amendment

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The final vote in the Senate opposing yet another sunset of the PATRIOT act was 72-23-5, meaning we’re almost a quarter of the way to regaining some semblance of a Fourth Amendment.

Heh.

Those voting against the forever PATRIOT?

Akaka (D-HI)

Baucus (D-MT)

Begich (D-AK)

Bingaman (D-NM)

Brown (D-OH)

Cantwell (D-WA)

Coons (D-DE)

Durbin (D-IL)

 Franken (D-MN)

Harkin (D-IA)

Heller (R-NV)

Lautenberg (D-NJ)

Leahy (D-VT)

Lee (R-UT)

Merkley (D-OR)

Murkowski (R-AK)

 Murray (D-WA)

Paul (R-KY)

Sanders (I-VT)

Tester (D-MT)

Udall (D-CO)

Udall (D-NM)

Wyden (D-OR)

Though note we’re not really a quarter of the way to a Fourth Amendment. Most of these Dems, I suspect, oppose the passage of another sunset without a debate. Some are particularly pissed about the latest interpretation of Section 215. But most still support the concept of PATRIOT powers.

Which means we’re not really making all that much progress.

One aspect of today’s vote I did find interesting, however, was that five Republicans voted against tabling Rand Paul’s gun amendment (limiting the use of Section 215 to get gun records), but voted in favor of the overall sunset. These five are: Barrasso (WY), DeMint (SC), Enzi (WY), Moran (KS), and Shelby (AL).

In other words, these men seem to object only to the use of super government powers when it threatens their gun rights, but not their First Amendment, nor their financial privacy, nor their associations.

While I happen to think figuring out what kind of guns suspected terrorists are buying is a reasonable use of a counter-terrorism law, if we have to have one, I am curious whether this vote will make gun nuts realize that their privacy’s at stake, too (though Saxby Chambliss got up to make it clear that domestic terrorists–like the right wing terrorists who might most object to using PATRIOT to collect gun purchase records–were not at risk). This vote also has the makings of one that TeaParty politicians might use to distinguish themselves from other Republicans.

Because right now, opposition to PATRIOT excesses is still mostly a Democratic issue (though Rand Paul definitely took the leadership role Russ Feingold would have had in the past). Until more Republicans join Paul, Heller, and Lee in opposing PATRIOT, it’ll remain on the books, particularly so long as we have a Democratic President whom Democratic Senators are happy to have wielding such power.

Update: After a half hour of debate, the extension passed the House 250-153.

Clapper: We Need to Pass PATRIOT to Make Sure Apple Continues to Track Your Location

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I’m very sympathetic to what Glenn and bmaz and Spencer and Julian have to say about the stupid fear-mongering around today’s PATRIOT extension. Julian’s explanation of how the grandfather clause would work is particularly important:

. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause.  And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect.  Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short-term extension):

The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has

expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.

Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.

And James Clapper’s fearmongering letter–which was liberated by Sam Stein–is particularly absurd on most counts.

I mean, are we supposed to worry that the government can’t “conduct timely surveillance on a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States,” when the government has never had a need to use this authority, not even with Khalid Ali-M Aldawsari, who was a “a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States”?

I mean, if Clapper wants to make bullshit claims, he just encourages us to treat everything he says as bullshit.

That said, I wonder whether the underlying issue here isn’t the explicit powers–the ability to find out about “terrorist [and non-terrorist] purchases of bomb-making chemicals” with Section 215, for example, but instead the secret collection programs. Clapper says,

Important classified collection programs might be forced to shut down, causing us to lose valuable intelligence information that could be used to identify terrorists and disrupt their plots.

After all, we presume the government is collecting geolocation data not through an actual investigation related to an individual suspect and therefore grandfathered in under the terms Julian laid out. We presume the government is playing fast and lose with the word “related to” in Section 215.

And so it’s not so much that we’ll lose track of Muslims who buy hydrogen peroxide. It’s that the corporations being forced (we presume) to turn over geolocation data are going to respond to the very public lapse of PATRIOT and refuse to keep turning that data over.

(In this way, this fearmongering is precisely like the fearmongering used in February 2008 after the Protect America Act expired; the real issue was the complaints of the telecoms who were legally on the line.)

Of course, none of this means anyone ought to cave to the fearmongering. After all, if the legal basis for this collection is so sketchy that it wouldn’t qualify for the grandfathering that the real authorities do, the government probably ought not be relying on it, right?

Or maybe Reid is just channeling Dick Cheney because he’s anxious to start his long holiday weekend.

 

The Changes Wyden/Udall Wanted to Section 215

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As I’ve been reporting, Ron Wyden and Mark Udall unsuccessfully tried to get the Senate to require the government to reveal how it interprets the PATRIOT Act. And since both have made it clear that Section 215 is one of the concerns, I wanted to look at the amendment they’ve proposed to fix Section 215. They proposed to replace this language:

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to— 

(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
With this:

(2) shall include–

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)(I) pertain to a foreign power or an agent of a foreign power;

(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.”.

This actually has become a perennial suggested change, one the Administration has been rejecting, in general, since 2009.

What the existing law does, through magic of grammatical obfuscation, is eliminate the requirement that Section 215 have anything to do with an actual investigation of suspected terrorists (or alleged spies like Julian Assange). It’s just easier (“presumptively relevant”) to use Section 215 with such people.

But all of that means the government can use Section 215 to get tangible things to protect against international terrorism. The government might only have to argue that it needs a database of everyone’s cell phone geolocation so when they look for terrorists or WikiLeaks supporters, they’ve got that all on file already.

Wyden and Udall are trying to swap out that language to require that the information both be relevant to an investigation and be tied to some suspected terrorist (or Julian Assange). The magic of “and.”

But of course that would make Section 215 useless for bulk collection, which is why this Amendment, after some fear-mongering, always gets defeated.

Because the United States of America, under the guise of fighting terrorists, has to consistently lie to its citizens so it can create massive databases on completely innocent people available for any searches the government might want to do, whether those searches have to do with terrorism or not.

And they call all this lying? The PATRIOT Act.

The Government’s PATRIOTic Databases on Innocent Americans

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As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

[snip]

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

Another Two-Tier Justice System: for “Unauthorized” Leaks

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I’m traveling to Boston today for the National Conference on Media Reform (if you’re in Boston, come see my panel on “Independent Journalism and International Crisis” on Saturday!). So blogging will be light today.

But I wanted to point to one more aspect of the Senate Intelligence Committee’s Intelligence Authorization–one also highlighted by Steven Aftergood. Someone–someone not in the intelligence community, apparently–has decided that intelligence community leakers (but not leakers from other parts of government) should lose their pension if the executive branch unilaterally decides they’ve leaked classified information.

The committee’s explanation for needing the bill is cute, among other reasons, because its concerns about “unauthorized” leaks seem to admit their lack of concern about “authorized” leaks of classified information.

The Committee has had long-standing concerns about unauthorized disclosures of classified information.

Which by itself points to the arbitrariness of our classification system.

But it’s in Ron Wyden’s extensive opposition to the measure where the true arbitrary potential for this becomes clear.

Given these challenges, my concern is that giving intelligence agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General.

Section 403 – as approved by the Select Committee on Intelligence – gives the intelligence agency heads the power to take pension benefits away from any employee that an agency head ―determines‖ has knowingly violated their nondisclosure agreement. But as I noted in the committee markup of this bill, neither the DNI nor any of the intelligence agency heads have asked Congress for this authority.Moreover, as of this writing none of the intelligence agencies have officially told Congress how they would interpret this language.

It is entirely unclear to me which standard agency heads would use to ―determine‖ that a particular employee was guilty of disclosing information. It seems clear that section 403 gives agency heads the power to make this determination themselves, without going to a court of law, but the language of the provision provides virtually no guidance about what standard should be used, or even whether this standard could vary from one agency to the next.

In other words, agency heads will get to decide, unilaterally and in secret, whether they think a former employee has leaked classified information and therefore should lose their pension.

Serving in the intelligence community is already prone to abuse. Since there is almost no transparency, agencies can and have fired people for being unwilling to participate in propaganda or illegal ops. And this would just give intelligence agencies one more tool to retaliate against people if they’re perceived as doing something wrong.

I can’t help but think of Jeff Sterling and this measure. He had a gripe about discrimination. But he also appears to have had a gripe about a really asinine plot to deal nukes to Iran. His case will be tried in court (though the agency already has a huge advantage over him, starting with the fact that they have already invoked state secrets in his case). But now Congress (or someone whispering on Congress’ ear?) wants one more tool to punish people like Sterling, this time with no due process. Moreover, in his case, the government has claimed that leaks to the American public are worse than leaks to our enemies.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

This measure, which would allow the government to use a two-tier justice system to secretly retaliate against those it claims leaked, seems to reinforce this growing claim to that leaks to American citizens are more dangerous than leaks to our enemies.

It seems the government believes the most dangerous spies are those who tell Americans what its government does in their name.

Obama’s Intelligence Leaders: For GAO Oversight Before They Were Against It

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Yesterday, we talked about how Rahm Emanuel opposed indefinite detention before he started working for it with Lindsey Graham.

Today, Steven Aftergood shows that Obama’s two intelligence heads, Leon Panetta and Dennis Blair, supported GAO oversight of intelligence activities before–presumably–they supported yesterday’s veto threat of GAO oversight.

As a Congressman in 1987, Leon Panetta actually introduced a measure to give GAO oversight authority over the CIA.

Sen. Daniel Akaka (D-HI), Rep. Anna Eshoo (D-CA) and others have repeatedly argued that the GAO could usefully supplement the intelligence oversight process without detracting anything.  “It is Congress’s responsibility to ensure that the IC carries out its critical functions effectively and consistent with congressional authorization. For too long, GAO’s expertise and ability to engage in constructive oversight of the IC have been underutilized,” Sen. Akaka said last year.

In 2008, Sen. Akaka chaired a Senate Homeland Security and Governmental Affairs subcommittee hearing (at which I testified [pdf]) on the feasibility and utility of GAO intelligence oversight.  “Congress must redouble its efforts–that is what we are trying to do–to ensure that U.S. intelligence activities are conducted efficiently, effectively, and with due respect for the civil rights and civil liberties of Americans, and I will work to see that it does,” Sen. Akaka said then.

Amazingly, an earlier version of the proposal for an expanded GAO role in intelligence oversight was introduced in 1987 by then-Rep. Leon Panetta, who is now the Director of the Central Intelligence Agency.

According to Rep. Panetta’s proposed “CIA Accountability Act of 1987″ (pdf) (H.R. 3603 in the 100th Congress), “Notwithstanding any other provision of law, the Comptroller General [who directs the GAO] shall audit the financial transactions and shall evaluate the programs and activities of the Central Intelligence Agency” either at his own initiative or at the request of the congressional intelligence committees.

And during his confirmation hearings, Blair was open to the possibility of GAO oversight as well.

At the January 22, 2009 confirmation hearing (pdf) of Adm. Dennis C. Blair to be Director of National Intelligence, Adm. Blair also acknowledged a role for GAO in intelligence oversight.

Sen. Ron Wyden asked him: “If the GAO is conducting a study at the direction of one of the intelligence committees using properly cleared staff, will you give them the access they need to do their work?”

Adm. Blair replied: “Senator, I’m aware that the direction of GAO studies and the terms of them are generally subject to talk between the two branches of government for a variety of reasons, and subject to having those discussions, ultimately I believe the GAO has a job to do and I will help them do that job.”

But, along with Obama’s opposition to investigating the Amerithrax investigation, he is now threatening to veto legislation that advocates just this kind of oversight.

Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

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As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.