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FBI Still Inventing New Ways to Surveil People with No Oversight

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Marisa Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Rummy’s Dump

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Donald Rumsfeld, channeling Julian Assange, has now made the database of documents accompanying his book available.

As Spencer notes, making these documents available is largely self-serving; a way for Rummy to point to early moments of reflection that were followed by later moments of rash stupidity or lies.

To put it uncharitably: when you’ve got a rep for being less-than-honest and unwilling to debate, you might as well let the documents speak for themselves.

So take, for instance, one that Rumsfeld’s promoting on his website. It’s a September 9, 2002 summary from the Joint Staff’s top intelligence official confessing that U.S. assessments of Saddam Hussein’s weapons of mass destruction “rely heavily on analytic assumptions and judgment rather than hard evidence.” Rumsfeld told the chairman of the Joint Chiefs of Staff to “take a look” at the memo, because “what we don’t know about WMD… is big.”

Aha! Rumsfeld was a voice for moderation on the Iraq WMD all along! He looks pretty good for bravely disclosing that, right? Not when you remember that after he received that summary, he continued to portray the evidence against Iraq as ironclad, up to and after the invasion. (“We know where [the WMD] are. They’re in the area around Tikrit and Baghdad and east, west, south and north somewhat.”)

Spencer points to similar examples relating to Afghanistan and interrogation.

But there are some fascinating documents in here. As Marc Ambinder noted yesterday, there’s Rummy’s memo to General Myers and Stephen Cambone supporting George Tenet’s recommendation that John Brennan head the Terrorist Threat Integration Center; in that position Brennan oversaw targeting for Cheney’s illegal wiretap program. But in news relevant to today, the memo also emphasizes Brennan’s experience as CIA’s Chief of Station in Cairo.

Then there’s this memo from retired General Wayne Downing to Rummy recommending some changes to Special Operations. Among other things, this memo recommends that special operations report directly to the Secretary of Defense:

To flatten the chain of command, JSOC should report directly to the SD for the immediate future. There is precedent for this new approach to the combat employment of SOF that will better position DoD for the future fight. JSOC reported directly to the CJCS prior to Goldwater-Nichols legislation and the Nunn-Cohen Amendment.

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Feingold

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The Senate just lost its most principled member, Russ Feingold. Consider it a beacon of our money- and fearmonger- drenched politics. Feingold was the perfect politician for America as our founders envisioned it. But a terrible politician when seats go to the highest (foreign) bidder or those screaming the loudest about heebie jeebies.

But as with Alan Grayson, I believe Feingold will continue to lead progressives and–especially for Feingold–civil libertarians going forward. Hell, given how corrupt and dysfunctional the Senate his, he may well find a way to be more effective.

But in the meantime, we have lost our biggest check on the assault on civil liberties in this country.

SSCI Unanimously Approves Nominee They Don’t Like

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As expected, SSCI just approved James Clapper’s nomination to be DNI. Surprisingly, though, there were no dissenters. Not Russ Feingold, with his worries about transparency on DOD covert ops. Not Tom Coburn, who was concerned about the timing of Clapper’s nomination (and who never met an obstructive tactic he didn’t like). Not even Kit Bond, who had a laundry list of concerns, from Clapper hiding his corporate ties, helping lie us into war, and flip-flopping on making NSA and NGA civilian agencies.

15-0.

A unanimous vote. For a guy everyone on the committee expressed concerns about.

Perhaps most pathetic of all is Kit Bond’s statement on his vote, admitting he knows he’s probably wrong about it.

General Clapper has served our nation honorably for 46 years and I admire him, he has assured me that he does not intend to be a hood ornament but judging from recent history my yea vote is really a triumph of hope over experience.

Congressional oversight at work.

James Clapper Hedges on Providing Ongoing Updates on Special Ops Activities (and Other Disconcerting Answers)

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As Josh Rogin and Marc Ambinder note, James Clapper is scheduled to get a vote tomorrow in the Senate Intelligence Committee on his nomination to be Director of National Intelligence. Ambinder reports that Kit Bond is most dissatisfied with Clapper at this point, the rest of the committee really ought to join in Bond’s dissatisfaction given his answers to their post-hearing questions. Take this response to Russ Feingold:

Success in the area of counterterrorism requires that the Intelligence Community and the Department of Defense coordinate their activities, and that congressional oversight not be fragmented. One example is Section 1208 of U.S.c. Title 10, which authorizes assistance to foreign forces, irregular forces, groups, or individuals supporting U.S. counterterrorism military operations. The Senate Armed Services Committee has expressed concern that U.S. Special Operations Command may be leveraging this authority for long-term engagement with partner nations, rather than exclusively to support operations, particularly in countries other than Iraq and Afghanistan. Information about the use of Section 1208 is therefore critical if the Intelligence Committee is to conduct oversight of how the U.S. government as a whole is fighting terrorism around the world.

• Will you ensure that this information is provided to the Committee?

Section 1208 of the FY 2005 National Defense Authorization Act, PL 108-375, requires the Secretary of Defense to submit an annual report “to the congressional defense committees on support provided to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing military operations by United States special operations forces to combat terrorism.”

If confirmed as the DNI I would not view the provision of DoD clandestine military operational information to the SSCI as being within my authority or responsibility; however, I would fully support an arrangement agreed to by the affected oversight committees for the submission of information to Congress concerning this matter. [my emphasis]

Feingold’s question pertains to this issue.

• Section 1208 (Support to Foreign Forces)

Section 1208 of the FY 2005 NDAA authorized DOD to reimburse foreign forces, groups, or individuals supporting or facilitating ongoing counter-terrorism military operations by U.S. special operations forces (SOF). The FY 2009 NDAA authorized $35 million a year for this authority through FY 2013. The Obama Administration did not request a change to Section 1208.

The HASC bill increases the annual budgetary authority to $50 million in order to limit funding restraints during the planning of Section 1208-funded operations. The HASC was generally supportive of Section 1208 programs and was pleased with more effective reporting of Section 1208-related activities. The HASC voiced concern, however, that Section 1208 should not to become a “train and equip” program managed by Special Operations Command (SOCOM). The HASC also expressed uneasiness over the use of private contractors to carry out Section 1208 activities and thus required additional reporting requirements to track such contracting.

The SASC bill does not raise the Section 1208 funding level, and the committee expressed dissatisfaction with current reporting. SASC voiced concern that SOCOM may be using 1208 funds to leverage long-term engagement with partner nations rather than exclusively for supporting military operations by U.S. special operations forces to combat terrorism. The SASC asked SOCOM to review their Section 1208 execution to eliminate such leveraging. [my emphasis]

In other words, the House Armed Services Committee has expressed concern that DOD is using this Special Ops provision to train allies in military operations, and using contractors to do so. As Feingold notes, the Senate Armed Services Committee is concerned that in the guise of supporting distinct operations, DOD is engaging in long-term operations.

To me, this reads like DOD is using this provision to engage in war in countries against which we’re not at war: like Somalia and Yemen. This sounds like the authority DOD is using to engage in operations–including drug related ones–in 75 countries, as Jeremy Scahill has reported.

So Russ Feingold, presumably thinking of the way in which the Bush Administration started using Special Ops for covert actions partly to hide them from the intelligence committees, asks the retired general nominated to head the Intelligence Community whether he would share information with the intelligence committees about the activities. And Clapper responds, I’m not legally obligated to. But, if the Armed Services Committees agree, we can do some info sharing. Nothing, incidentally, about sharing the information in as timely fashion as the CIA would have to share information on less risky covert ops. Just a yearly report, I guess.

Now perhaps Clapper’s willingness to share information is all well and good and I shouldn’t worry.

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DOJ Still Deliberating about 2006 White Paper

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As I noted in my last post, the Obama Administration is following Bush Administration precedent in shielding OLC memos from Congressional oversight.

The Kyl and Coburn requests for OLC memos on any rights Gitmo detainees would get if brought into the US were not the only questions about OLC memos posed to Eric Holder after his November 2009 appearance before the Senate Judiciary. Russ Feingold raised an issue he always raises during oversight hearings: the still-operative OLC memos authorizing warrantless wiretapping.

Office of Legal Counsel White Memos:

20. In your October 29, 2009, responses to Questions for the Record from the June 17, 2009, Department of Justice Oversight hearing, you stated that there was an ongoing review of whether to withdraw the January 2006 White Paper and other classified Office of Legal Counsel (OLC) memos providing legal justification for the NSA’s warrantless wiretapping program. What is the current status of that review? When will it be complete? Has anyone at the Department made an affirmative decision to leave those opinions in effect?

Response: The Department is still conducting its review, and will work with you and your staff to provide a better sense of the timing of the completion of the review. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.

This is the White Paper based largely on a May 6, 2004 Jack Goldsmith opinion written after the hospital confrontation and designed to replace Yoo’s expansive claims to inherent authority with an argument that the AUMF authorized the warrantless wiretap program. And according to Holder, DOJ is still dithering around with the question of whether they need to withdraw the memo.

Presumably, that decision is being made at least partly at OLC. You know–OLC? The department Dawn Johnsen should be running?

And I find that curious because, while I have no idea what Acting OLC  head David Barron thinks of the January 2006 White Paper, we do know what another key OLC attorney thinks about it. While still at Balkinization, Marty Lederman repeatedly explained why the AUMF could not be claimed to have authorized the warrantless wiretap program. In February 2006, Lederman was one of a number of lawyers who wrote Congress explaining that the AUMF argument made no sense. In March 2006, Lederman wrote a long post analyzing what David Kris–now AAG for National Security–said in arguing that the AUMF couldn’t justify the warrantless wiretap program.

Yet, in spite of the fact that two of the DOJ’s key people believe this White Paper to be bogus, DOJ is still trying to figure out whether they need to withdraw it.

Under Michael Chertoff, DHS Used David Horowitz Propaganda in Intell Report

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Mark Hosenball reports that Dianne Feinstein and other Senate Dems have accused the Department of Homeland Security’s spooks of using right wing propaganda to develop finished intelligence reports on Muslims. By looking at this paragraph from last year’s intelligence authorization…

The Committee has raised a number of concerns with reports issued by the Department of Homeland Security OIA that inappropriately analyze the legitimate activities of U.S. persons. These reports raised fundamental questions about the mission of the OIA and often used certain questionable open source information as a basis of their conclusions. The Committee recommends that the next Under Secretary for Intelligence and Analysis conduct a comprehensive review of the quality and relevance of the intelligence products produced by the OIA, and provide this review to the congressional intelligence committees within 180 days of enactment.

And analyzing the language from this letter from Russ Feingold and Jay Rockefeller, Hosenball credibly argues that DHS used David Horowitz’ DiscoverTheNetworks.org as a source for a least one intelligence report on a US Islamic leader. (The letter cites the tagline, “identif[y] the individuals and organizations that make up the left,” a term Horowitz has used.)

Among others targeted by Horowitz’ site–though not all Islamic leaders–are Keith Ellison, Arianna Huffington, and Kos. And, ironically enough, Janet Napolitano.

Hosenball also notes that the report on the Islamic leader using Horowitz’ site was developed for DHS’s Civil Rights Office, and from there, was circulated to other intelligence agencies.

Congressional officials say the Homeland intelligence report that particularly angered Feinstein and other committee members is still classified. Nevertheless, three current and former intelligence officials, requesting anonymity when discussing sensitive information, say the report in question is a profile of an unnamed but prominent American Islamic leader and was produced by Homeland Security’s intelligence office during the latter years of the Bush administration. The report was requested by the Department’s civil rights office, whose officials were preparing to meet with the Islamic leader. But instead of sending the civil rights office a quick bio of the individual in question, Homeland’s intelligence office issued a “finished” intel report that was circulated to other intelligence agencies and, eventually, to Congressional oversight committees.

In other words, Michael Chertoff was using the Civil Rights Office at DHS as the impetus to develop finished intelligence reports based on the First Amendment activities of Americans.

Remember the firestorm last year when wingnut groups learned DHS did a report–initiated by the Bush Administration–on right wing extremist groups?

The report, “Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” said right-wing extremist groups may be using the recession and the election of the nation’s first African-American president to recruit members.

The report, which was prepared in coordination with the FBI, was published last week. It was distributed to federal, state and local law enforcement officials. Mainstream media picked up the story after it was reported by conservative bloggers.

I wonder if they’ll show the same alarm with this report?

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.

Supreme Court Unleashes Corporate Campaign Cash In Citizen's United Decision

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images5thumbnail1.thumbnail11The stunning and decisive loss by Martha Coakley to Scott Brown in the Massachusetts Senate special election has already caused a tsunami of fear among Democrats, and corresponding joy among Republicans, heading toward next fall’s midterm elections. If you think this is cause for concern for Democrats looking forward to the 2010 midterm elections, picture the scene if the Republican party were also able to benefit from removal of restrictions on corporate and financial industry cash infused into their electoral coffers heading into the midterms and 2012 Presidential election.

As I wrote back last August, the Supreme Court took very unusual steps in a case by the name of Citizens United v. FEC to craft a case – originally argued on separate grounds – into a vehicle to make a Supreme Court declaration on the constitutionality of campaign finance restrictions and regulations. As Adam Cohen of the New York Times put it:

If the ban is struck down, corporations may soon be writing large checks to the same elected officials whom they are asking to give them bailouts or to remove health-and-safety regulations from their factories or to insert customized loopholes into the tax code.

Citizens United v. FEC was originally argued on March 24, 2009; but subsequently noticed for re-argument on the new grounds involving the opening of corporate campaign contributions on September 9, 2009. The general consensus among the cognoscenti is that the Justices were leaning heavily toward blowing up the regulations and restrictions on corporate campaign contributions. For a complete blow by blow procedural and substantive history leading up to the decision, see Lyle Denniston’s SCOTUSWiki on this case.

Well, the decision in Citizens United v. Federal Elections Commission is in and attached hereto. As you can see, it is a 5-4 split decision with Justice Kennedy writing the majority opinion. The decision below is reversed in part and affirmed in part, and the seminal case of Austin v, Michigan is hereby overruled as is that part of McConnell v. FEC which upheld the resitrictions on independent corporate expenditures. In dissent, and/or partial dissent is Justice Stevens, joined by Ginsburg, Sotomayor, and Breyer. Justice Thomas also filed an opinion concurring in part and dissenting in part.

Today’s decision in Citizens United v. FEC abolishes the previously settled distinction between corporate and individual expenditures in American elections and would appear to apply to state and local elections as well as Federal ones given that the Court recognizes such a First Amendment right. This is literally an earth shattering change in the lay of the land in campaign finance, and it will have ramifications in every way imaginable for the foreseeable future.

Quoting a very interested observer, Senator Russ Feingold, he of McCain-Feingold fame, John Nichols had this to say in The Nation:

But U.S. Senator Russ Feingold, the Wisconsin Democrat who has been in the forefront of campaign-finance reform efforts for the better part of two decades, is worried.

“This would be in my view, a lawless decision from the Supreme Court,” says the senator who gave his name to the McCain-Feingold law. “Part of me says I can’t believe they’ll do it, but there’s some indication they might, and that means the whole idea of respecting the previous decisions of the Supreme Court won’t mean anything anymore.”

A lawyer who chairs the Constitution Subcommittee of the Senate Judiciary Committee, Feingold notes with regard to controls on corporate campaigning: “These things were argued in 1907, when they passed the ban on corporate treasuries. It was argued in 1947, Taft-Hartley did this. The Supreme Court has affirmed over and over again that it’s not part of free speech that corporations and unions can use their treasuries (to buy elections).”

If the court does overturn both law and precedent to advance a corporate Read more →

Why Not Send 30,000 Troops to Somalia?

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Spencer focused on a really important part of the Afghanistan debate today–the struggle the Administration is having to claim that al Qaeda and its affiliates in Af-Pak pose a direct threat to the US.

“Syndicate of terror” was how Secretary of State Hillary Rodham Clinton described the relationship between al-Qaeda and the various insurgent and terrorist networks across the border between Afghanistan and Pakistan, a position eagerly endorsed by her colleagues Secretary Robert Gates and Adm. Michael Mullen. Anticipating the argument that the syndicate does not substantially threaten the United States at home, Clinton said that “at the head of the table,” like a “Mafia family,” sat al-Qaeda. And that means, she continued during her testimony today before the Senate Foreign Relations Committee, that al-Qaeda retains a capability to export terrorism to “Yemen, Somalia or, indeed, Denver” that is “unmatched” — a reference to the recently arrested Najibullah Zazi. Zazi’s case, which has yet to go to trial, shows a plot that traces “back to al-Qaeda-originated training camps and [a] training program” in Pakistan.

This is going to be one of the most controversial and disputed elements of the Obama administration’s strategy: the scope of the threat and the directness of the links between al-Qaeda in the Pakistani tribal areas; its strategic depth through the “syndicate” on each side of the Afghanistan and Pakistan border; and that syndicate’s capabilities to export destruction.

[snip]

I am told by senior administration officials that the autumn Afghanistan-Pakistan strategy was informed by 30 intelligence products, many of which were directly produced for the review, and several of which focused on the question of al-Qaeda’s global reach from the Pakistani tribal areas. I’m also told that the military is increasingly looking at the nexus between al-Qaeda, the Pakistani Taliban, the Haqqani network in both Afghanistan and Pakistan and a rising extremist ally, the Islamic Movement of Uzbekistan. But the link between that nexus and its present capability to reach the United States at home, to put it as neutrally as I can, has not been publicly demonstrated, and requires much further and deeper exposition — and, frankly, proof — than the administration has provided.

Now, Spencer is focusing on whether Najibullah Zazi will end up having been directly tied to Afghanistan or Pakistan. That’s the case Hillary was making. But it’s not clear the case is as strong as she suggested.

But I think there’s another way to make the same point–the argument Russ Feingold has been making. Rather than focusing on whether Afghanistan is the headquarters of al Qaeda, Feingold focuses on all the other places where al Qaeda is active where we’re not sending 30,000 troops (Feingold admits that Pakistan is important to al Qaeda right now, which raises the question of whether we’re sending these 30,000 for Afghanistan or Pakistan).

BLITZER: OK.

Let’s talk a little bit about why you oppose what the president is doing. What’s wrong with his logic?

FEINGOLD: Well, it just doesn’t add up for me.

The president says, we’re doing this. We’re adding 30,000, 35,000 troops to finish the job. And I ask the question, “What job?” because the president has been so eloquent in pointing out our issue is fighting al Qaeda.

The argument falls apart when you realize that al Qaeda does not have its headquarters in Afghanistan anymore. It is headquartered in Pakistan. It is active in Somalia, and Yemen, North Africa, affiliates of it in Southeast Asia.

Why does it make sense to have a huge ground presence in Afghanistan to deal with a small al Qaeda contingent, when we don’t do that in so many other countries where we’re actually having some success without invading the country and attacking those that are part of al Qaeda? It doesn’t make sense.

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