THE MEMORANDUM OF NOTIFICATION THE CIA PRETENDS HAS NEVER BEEN ACKNOWLEDGED

“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].

“We do now,” Wilmington’s voice was flat. The conversation remained quiet.

“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”

[snip]

“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.”

–Glenn Carle, The Interrogator: An Education, approved by CIA’s Publication Review Board prior to its summer 2011 publication

Yesterday, I described how the CIA appears to be refusing to release via FOIA any mention–or even a substitution mention–of references to the September 17, 2001 Presidential Memorandum of Notification the government claims authorizes torture and a bunch of other activities.

In this post I’d like to deal with AUSA Tara LaMorte’s March 9, 2012 claim that what I believe to be the MON has never been acknowledged before.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

Now, as it happens, the CIA made an extensive declaration about the MON in a statement from Marilyn Dorn, the CIA’s Information Review Officer, back in 2007. The description of it–item 61–starts on page 34.

The declaration is actually pretty funny. ACLU had asked for any declarations signed by the President authorizing the torture program. There is none. So in her declaration, Dorn as much as said this MON–which doesn’t mention interrogation–was the MON in question.

Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees. The CIA did locate one document signed by President Bush that pertains to the CIA’s authorization to set up detention facilities outside the United States. The document responsive to Item No. 61 is a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.

So in response to ACLU’s FOIA, which basically said, “give us the legally-required MON that authorized torture,” Dorn said, “we don’t have one, but here’s what we’ve been using for all these years.” That’s pretty significant acknowledgment of what kind of authorization underlies the torture program. Dorn’s declaration goes on to provide some detail about the memo.

This 14-page document consists of a 12- page notification memorandum and an attached two-page cover memorandum. The 12-page notification memorandum is a memorandum from the President to members of the NSC regarding a clandestine intelligence activity. The two-page cover memorandum is a transmittal memorandum from the Executive Secretary of the NSC to the Director of the CIA.

The 12-page memorandum pertains to the CIA’s authorization to detain terrorists. The memorandum discusses the approval of the clandestine intelligence activity and related analysis and description. The memorandum also discusses other matters not relevant to Plaintiffs’ general or specific FOIA requests.

Now, just as a reminder, the redactions the CIA is now fighting to retain are repetitions of a half-line phrase taken from the title of a George Tenet memo. The redactions in question are not paragraph-long descriptions of the program (Judge Alvin Hellerstein has already agreed to the government’s request to keep those two paragraphs redacted). They’re just a short phrase. About the only thing not included in Dorn’s description–but which, if I’m right that this is the MON, probably appears on the memo and possibly in this title–is the term of art “Memorandum of Notification.”

Though there is one more, potentially very significant point. Dorn repeatedly calls this a “clandestine intelligence activity,” not a “covert operation.” That’s rather funny, because one of the numerous times a CIA figure has already implicitly revealed a finding must exist came when, on April 16, 2009, Michael Hayden stated that the interrogation program had started as a covert op (I wrote about the implications of that here, though the YouTube has been lost to the Toobz demons). There are important distinctions between clandestine and covert programs, notably pertaining to whether we plan to deny our involvement in an activity and whether congressional notification–notification just like this memo–is required. Michael Hayden, in what really constitutes the beginning of an acknowledgment that this authorization had to have existed, says it was covert. Dorn says it was clandestine.

But Hayden isn’t the only former top level CIA official who has acknowledged this MON, authorizing covert–not clandestine–activities existed. John Rizzo–who was the CIA lawyer most involved in the torture program for most of its existence–provided extensive details about how (he claims) Congress was informed about it.

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

As always, CIA dutifully followed White House orders, so for the next five years we only told those select members—euphemistically dubbed the “Gang of 8″—about the program as it developed and expanded. Only they were briefed on CIA’s secret detention facilities overseas and the employment of so-called “enhanced interrogation techniques” (EITs), including the waterboarding of high-value detainees like Abu Zubaydah and Khalid Sheik Mohammad.

While used only rarely in the past, the “Gang of 8” notification process is explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of “extraordinary” sensitivity. It was an entirely lawful way to proceed to notify Congress about the EIT program. Yet I am convinced it proved to have disastrous consequences for CIA.

[snip]

Meanwhile, other than the chair and ranking member, the two intelligence committees would be kept in the dark for the first five years of the program, as was every other member of Congress. In effect, they were given a pass on any oversight and responsibility for the program, as the attacks about what the Agency was doing escalated in the media. And to what end, all this extraordinary secrecy? Over those five years, many of the details about the program were leaking out, drip by drip, from elsewhere in the Government.

There’s a lot in this passage, and on many counts (according to their own records, CIA briefed the Gang of Four, not the Gang of Eight, for example) it’s inaccurate. But let’s start with the larger question. Sure, Rizzo was reportedly under investigation for his leaks about the drone program. So if pressed, the CIA could presumably claim this was unauthorized disclosure, as were the anonymous leaking by “three former intelligence officials” to outlets like the NYT acknowledging the MON.

Still, if I’m right and a mention of the MON is what this FOIA squabble is all about, it’s pretty breathtaking for LaMorte to suggest this has never been acknowledged, when the key lawyer involved in the process lays out the Agency’s (demonstrably inaccurate) version of the authorization process involved.

Maybe I’m completely wrong and the many reports–including the internal conversation Carle described–of the authorization behind this program are inaccurate. Maybe these redactions aren’t hiding President Bush’s personal authorization of the torture program.

But if I’m right, CIA figures have repeatedly acknowledged the MON and all this redaction fight serves to hide is written record implicating the President.

THE CIA’S FOUR-BOX OF DEATH

Just to finish up with my continuing obsession with CIA General Counsel Stephen Preston’s speech at Harvard (don’t miss Josh Gerstein getting into the act with his fact check on the shooting of Osama bin Laden’s wife), I wanted to look at Preston’s “hypothetical case,” which I contend is meant to offer an explanation for how the CIA decided the Anwar al-Awlaki killing was legal.

I say this “hypothetical” is really about Awlaki because Preston focuses closely on Executive Order 12333’s prohibition on assassinations (never mind that OLC holds that this very EO can be pixie dusted without notice). Particularly given that Preston willingly talks about OBL’s killing–about the only other one that might be deemed an assassination–Preston’s attempts to rebut the claims that Awlaki was assassinated seem to arise from the same anxiousness Eric Holder exhibited on the same topic.

In other words, this is the CIA version of the speech Holder made.

Preston describes framing his analysis in terms of a four-box matrix.

I conceive of the task in terms of a very simple matrix. First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

Finally, note Preston’s emphasis on imminent threat. I’ve already noted that Holder’s own speech was weakest precisely when suggesting Awlaki was an imminent threat because he was a top leader of AQAP.

In checking off compliance with the National Security Act, Preston emphasizes the Presidential Finding.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

I’m wondering whether Preston does this to avoid any compliance problems arising from CIA and DOJ’s refusal to answer Ron Wyden’s questions about the legal justification for killing Awlaki. Which would mean this check is very cursory, fulfilling only the bare minimum requirement but not ensuring that Congress has full understanding of the program. In checking off his second box–compliance with international law–Preston does two interesting things.

Here we need look no further than the inherent right of national self-defense, which is recognized by customary international law and, specifically, in Article 51 of the United Nations Charter. Where, for example, the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.

The existence of an armed conflict might also provide an additional justification for the use of force under international law.

He situates self-defense in having already been attacked (another reason this seems to address Awlaki–and a case that doesn’t justify CIA’s covert ops against Iran). But he treats “the existence of an armed conflict”–and Congress’ declaration of war–as an optional plus again.

With regards to Preston’s third box, he wasn’t in charge when CIA exceeded the terms of OLC approval for torture. So I’ll forgive him for claiming that CIA strictly adheres to the limits included in authorization.

First, we would make sure all actions taken comply with the terms dictated by the President in the applicable Finding, which would likely contain specific limitations and conditions governing the use of force. We would also make sure all actions taken comply with any applicable Executive Order provisions, such as the prohibition against assassination in Twelve-Triple-Three. Beyond Presidential directives, the National Security Act of 1947 provides, quote, “[a] Finding may not authorize any action that would violate the Constitution or any statute of the United States.” This crucial provision would be strictly applied in carrying out our hypothetical program.

In addition, the Agency would have to discharge its obligation under the congressional notification provisions of the National Security Act to keep the intelligence oversight committees of Congress “fully and currently informed” of its activities. Picture a system of notifications and briefings – some verbal, others written; some periodic, others event-specific; some at a staff level, others for members.

I find this passage particularly interesting given what we know about the Finding that was pointed to as the authorization for torture (it’s likely the same one that authorized Awlaki’s killing). According to reports it authorizes the capture and detention of senior al Qaeda figures. It was very vague. And Preston’s predecessor has asserted the written finding did not authorize torture. Instead, CIA briefed–verbally, like Preston says sometimes occurs–the Gang of Eight (though in truth, according to the CIA’s own records, just the Gang of Four, after the fact) about the torture part. Preston seems to suggest the same kind of legal paper trail free briefing still goes on and (if I’m right this is all about Awlaki) went on in that case.

Also, if it all goes back to this Finding and verbal briefings after the fact, then it would explain why Preston situates his analysis in Article II authority: because the Finding in question–dated September 17, 2001–was issued before the AUMF–which was signed on September 18.

The rest of this–about not violating the Constitution of the United States–may well invoke the Scott v. Harris precedent that Charlie Savage says the government used to authorize the use of force against a US citizen (except that’s a difficult precedent to apply to CIA, given that, as Preston notes, the CIA can’t play a law enforcement role).

Which brings us, finally, to Preston’s reiteration that CIA abides by the principles of armed conflict.

Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.

But wait! I thought Congressional authorization was just gravy? To say nothing of the problems with the CIA performing these tasks rather than the military. But never you mind, the CIA will make sure to minimize civilian casualties. Except for maybe the 16 year old American son of the last guy they killed.

WILL SCOTUS INVENT A “DATABASE-AND- MINING” EXCEPTION TO THE FOURTH AMENDMENT? As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.

Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment’s Warrant Clause includes a “foreign intelligence surveillance exception,” as the FISA Court of Review held in the In re Directives decision in 2008. That’s because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government’s authority under this provision going forward (especially if In re Directives is not followed…). I would go further and say that this case will determine whether there is what I’ll call a database-and-mining exception allowing the government to collect domestic data to which no reasonable suspicion attaches, store it, data mine it, and based on the results of that data mining use the data itself to establish cause for further surveillance. Thus, it will have an impact not just for this warrantless wiretapping application, but also for things like Secret PATRIOT, in which the government is collecting US person geolocation data in an effort to be able to pinpoint the locations of alleged terrorists, not to mention the more general databases collecting things like who buys hydrogen peroxide.

I make a distinction between foreign intelligence surveillance and “database-and- mining” exceptions because the government is, in fact, conducting domestic surveillance under these programs and using it to collect intelligence on US persons (indeed, when asked about Secret PATRIOT earlier this month, James Clapper invoked “foreign or domestic” intelligence in the context of Secret PATRIOT). The government has managed to hide that fact thus far by blatantly misleading the FISA Court of Review in In re Directives and doing so (to a lesser degree) here.

In In re Directives, the government misled the court in two ways. First, according to Russ Feingold, the government didn’t reveal (and the company challenging the order didn’t have access to) information about how the targeting is used. The amendments he tried to pass–and which Mike McConnell and Michael Mukasey issued veto threats in response to–suggest some of the problems Feingold foresaw and the intelligence community refused to fix: reverse targeting, inclusion of US person data in larger data mining samples, and the retention and use of improperly collected information.

The government even more blatantly misled the FISCR with regards to what it did with US person data.

The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions to not render those acquisitions unlawful.9 [citations omitted] The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.

9 The petitioner has not charged that the Executive Branch is surveilling overseas persons in order intentionally to surveil persons in the United States. Because the issue is not before us, we do not pass on the legitimacy vel non of such a practice.

The notion that the government doesn’t have this US person data in a database is farcical at this point, as the graphic above showing the relative size of the NSA’s data center in UT–which I snipped from this larger ACLU graphic–makes clear (though the government’s unwillingness to be legally bound to segregate US person data made that clear, as well). As I suggested when this decision was released, the government must have been offering non-denial denials of having such a collection of US person data back in 2007.

Did the court ask only about a database consisting entirely of incidentally collected information? Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)? Or, as bmaz reminds me below but that I originally omitted, is the government having one or more contractors maintain such a database? Or is the government, rather, using an expansive definition of targeting, suggesting that anyone who buys falafels from the same place that suspected terrorist does then, in turn, becomes targeted?

As I showed yesterday, the government is already doing something similar with this suit, simply ignoring the part of the suit pertaining to the completely legal retention of purely domestic communications, so long as it was ostensibly collected unintentionally.

Their larger argument, too, does something similar, using a definition of “targeting” that tautologically excludes US persons in principle but not in fact.

Section 1881a does not authorize surveillance targeting respondents or any other United States person, 50 U.S.C. 1881a(b)(1)-(3), and respondents have presented no evidence that their international communications have ever been incidentally acquired by the government in its surveillance of non- United States persons abroad.

Of course, it takes two to communicate, so for every single targeted conversation, there is a counterparty whose communications are also collected. Nevertheless, the government focuses on authorizations–the word “targeting”–to distract from these counterparties. Note too, here, how once again the government ignores 1881a(b)(4), which permits the retention of incidentally collected domestic communications.

One of the real tells, though, comes in what appears to be a throwaway intended to prove there are people who would have standing to sue under FAA.

If the government intends to use or disclose any information obtained or derived from its acquisition of a person’s communications under Section 1881A in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, even if the person was not targeted for surveillance under Section 1881A. 50 U.S.C. 1881e(a); see 50 U.S.C. 1801(k), 1806(c).

The government’s reference to the possibility it would use data “even if the person was not targeted for surveillance” admits that it does collect and review the communications of those not targeted, potentially even for law enforcement purposes. But then it suggests that the only way people could be aggrieved is if their communications were used for law enforcement, not intelligence.

Yet the plaintiffs argument for injury is that they cannot do their jobs–NGOs, lawyers, reporters–even if their communications become subject to intelligence, not law enforcement, collection. Their question, of course, is whether domestic intelligence collected under the guise of foreign intelligence constitutes a violation of the Fourth Amendment, whether the government has a database-and-mining exception under the Fourth Amendment.

That may not change SCOTUS’ analysis on standing. But it does make it clear that–no matter how the government would like to distract from this point–US person data (even entirely domestic conversations) can be legally collected and analyzed under this law.

So that is what the stakes are. The government would love to have SCOTUS either deny cert or affirm the district finding that the plaintiffs don’t have standing, particularly before Jewel, which addresses the underlying issue of dragnet collection. The government would also love to use such a SCOTUS action, in secret, to rule that its use of GPS tracking in the intelligence, which it is busy distinguishing from a law enforcement context under Jones, context is legal. The government would also like any challenge to pertain to a specific order (as it would be under 1881e), so it can hide what it does with the data it collects once it goes into the database in UT.

And given what Russ Feingold said back in 2008–that an adversary process would reveal both the potential for abuse, and quite possibly the abuse, the government really really doesn’t want this case to move forward.

THE GOVERNMENT DOESN’T WANT TO TALK ABOUT COLLECTING DOMESTIC COMMUNICATIONS UNDER FAA On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.

The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.

One clause notably missing from the almost- sequential list above is 1881a(b)(4), which reads,

[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)

Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.

And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:

An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States

[snip]

Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.

And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:

“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

[snip]

In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:

[snip] (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

[snip]

Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.

[snip]

But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.

Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.

Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.

Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.

And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.

WORKING THREAD ON ILLEGAL WIRETAP MEMO

As I noted in this post, DOJ has released two of the memos used to authorize the illegal wiretap program. I made some brief comments on the November 2, 2001 John Yoo memo here. This will be a working thread on the May 6, 2004 Jack Goldsmith memo.

P1: Note in the TOC (and in later references), DOJ has redacted the date when the program was modified. We know this date is some time after the March 10, 2004 hospital confrontation. Pretty much the only reason to redact that date is to make it harder to know how long the program operated solely with Bush’s authorization. And the biggest reason to do that is to hide the detail from al-Haramain’s lawyers, because it would add evidence that the phone calls intercepted in early March 2004 were intercepted at a time when the program didn’t have DOJ sanction.

P3: The first redaction on the page is interesting because it seems to qualify what they do after they intercept communications in the US; remember that one of the big conflicts at the hospital confrontation was the data mining they were doing (in defiance of Congress specifically defunding data mining of US citizens).

P3: Note the invocation of 18 USC 2510-2521 in addition to FISA. This makes it sort of explicit they were using other authorization processes for some of this. I’ll come back to this point. But it’s worth noting that the 2010 opinion cleaning up past exigent letter use used 18 USC 2511(2)(f) to do so.

P5-6: Note that footnote 2, which probably describes ongoing air patrol surveillance of the country is redacted. Note, too, that the entire paragraph is classified Secret. Goldsmith was basically using the black (heh) helicopters patrolling the skies–which we could literally hear and see–as basis to rationalize the claim that it was okay for the military to be operating in the US. And the government believes we shouldn’t know that. Moreover, there appears to have been ongoing patrols we weren’t supposed to know about in 2004.

P6: Note how Cap’n Jack asserts that 2001 AUMF is still active in May 2004:

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

He could have found any number of sources to support his claim that the 10,000 troops (ah, the good old days) in Afghanistan sustained the AUMF. Instead, he cited a story reporting Pat Tillman was “killed in combat”–itself a story that was the product of elaborate govt propaganda.

P6-7: Note the citation of the Mueller quote from testimony he gave to SSCI on February 24, 2004. That’s interesting timing, because at a February 11, 2004 hearing, Ron Wyden had asked whether Total Information Awareness, which had been explicitly defunded for that fiscal year, at which point Michael Hayden said he wanted to answer in closed session.

Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was “correct that when [TIA] was closed, that several … projects were moved to various intelligence agencies…. I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter’s programs are going on somewhere else.”

Negroponte and Mueller said they didn’t know. But Negroponte’s deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, “I’d like to answer in closed session.” Asked for comment, Wyden’s spokeswoman referred to his hearing statements.”

I wonder if the Mueller briefing Goldsmith cited was from the closed session where DIA and FBI gave their response?

P7: Note the reference to minimization. I believe that’s the first we’ve heard about minimization in the early days of the program. Also note that he directs DOD generally, not NSA specifically, to do the minimization. That’s downright odd. [Update: now, we’ve had discussion about minimization before. See this post.]

P8: Note the fourth redaction on this page, after the words, “without resort to judicial warrants.” It appears that warrants is followed by a period, but that doesn’t make sense as it appears there are a few more words to that sentence. Judicial warrants … “and oversight,” maybe? Any other guesses?

P8: Goldsmith notes that the Gang of Four were briefed on the program “in 2002 and 2003.” As I have noted before, there should have been a briefing in January 2004. Much of the rest of that footnote may well explain how they got out of that briefing.

P9: Note the second redaction, hiding who besides the DCI reviews the threat assessment that justifies the continuation of the program before it goes to OLC. That’s particularly interesting given that the Terrorist Threat Integration System was doing the treat assessment in May 2004, when Goldsmith wrote this opinion. And John Brennan, currently Obama’s Deputy National Security Advisor, was in charge of the TTIC at the time. In any case, it doesn’t seem justifiable to redact who, besides the DCI, does this review. Note that the IG Report also refers OGC attorneys reviewing the the threat assessment to fluff it up if it wasn’t sufficient to justify sustaining the program.

P9: Goldsmith writes:

As explained below, since the inception of [redacted name of program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to hae, multiple redundant plans for executing further attacks with the United States.

See how one illegal program serves to justify another illegal program?

P11: Goldsmith launches his discussion of the changes that took place in March 19 with a discussion of “how the NSA accomplishes the collection activity under [the program].” That might support the datamining aspect, but maybe not.

P15: Note there’s a word after the “Commander in Chief Clause” in the description of the basis Bush invoked to authorize the program on March 11. Wonder what that is?

P16: The modification took place on March 19. Note that it pertained to making it clear “there were reasonable grounds to believe that a communicant was an agent of an international terrorist group …” I’m betting the caveat after that doesn’t ultimately say what Goldsmith would, that the terrorist organization has to target the US.

P16: Note Goldsmith authorizes three activities. One is the authority to “intercept the content of international communications ‘for which … a party to such communication is a group engaged in international terrorism, or activities in preparations therefor, or any agent of such a group,’ as long as that group is al Qaeda, an affiliate of al Qaeda, or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile action within the United States.”

P17: Goldsmith lists the following opinions related to this program:

October 4, 2001 November 2, 2001, expressly authorizing a November 2, 2001 authorization October 11, 2002: confirming the application of prior analysis

Note two things. First, this list doesn’t coincide with other lists (Goldsmith ignores the October 23, 2001 4th amendment eliminating one, as well as some “hypothetical ones” in between; the IG Report only talks about the November 4 one, and Bradbury talks about a few more.

Also note the space between the date, October 4, 2001, and the main clause of the sentence, “we evaluated.” One thing I’m increasingly convinced is that the program operated under FISA’s 15-day window until October 3, 2001. So I wonder if that acknowledges that fact?

P18: Note that Goldsmith starts w/12333. That’s the EO that Bush pixie dusted.

P20: The paragraphs that appear in part on this page appear to be misclassified. They both talk exclusively about published legislation. Neither mentions the name of the program. Yet both are classified TS.

P21: Note how Goldsmith introduces his claim that FISA is not exclusive: “We conclude that the Congressional Authorization is critical for [redacted name of program] in two respects.” That reveals how much he reverse his analysis, not looking at what the AUMF said, bu what he needed to justify the program.

P23: My discussion of the newly disclosed OLC opinion discussed in the footnote is here.

P30: The examples Goldsmith uses to show the continuity of SIGINT is terrible cherry picking. How is Jeb Stuart’s personal wiretapper, wiretapping commercially run cables, similar to wiretapping private phone calls? MOre damning still is his lack of any treatment of Vietnam era wiretapping, done under cover of war, but targeting speech. Note too where Goldsmith highlights the phrase “control all other telecommunications traffic” when discussing WWII surveillance. Since that’s what we think they were doing here, I find the emphasis notable.

P31: Note that Goldsmith refers to the 15-day exemption under FISA; he says “as noted above,” meaning he has already treated this, in what must be a now-redacted section. Particularly given Goldsmith’s discussion of the legislative intent–to give Congress time to alter FISA in time of war–his non-discussion of PATRIOT here is nothing short of dishonest. (He does discuss it later, though.) This allows him to say, “The mere fact that the Authorization does not amend FISA is not material,” without at the same time acknowledging that Congress was at that moment amending FISA! It’s all the more important given the October 4 approval that would have marked the end of the 15-day exemption period.

P31: Note the footnote invoking the Padilla and Hamdi circuit court decisions. On his last day as AAG, Goldsmith wrote an opinion that reviews whether a recent court decision–almost certainly Rasul–affected his analysis. But we’re not being given that opinion.

P32: I wonder how Goldsmith responded to Tom Daschle’s op-ed making it clear that Congress specifically refused action in the US, given that he claims the “deter and prevent acts of international terrorism against the US” amounted to carte blanche to operate in the US.

P32: NOte the reference to the Iraq AUMF–and its invocation of terrorism. That’s relevant not least bc Goldsmith expands the terms of the Afghan AUMF beyond al Qaeda.

P34: Note that the paragraph of this page, discussing a PATRIOT change, is unclassified. The next, also discussing a PATRIOT change, is classified TS. The only plausible explanation I can think of for the the second is to hide from people outside of the compartment how full of shit that second paragraph is. [Note: I lost a huge chunk of this post right in here–looking to see if I can reconstruct it]

P39: Check out this tautology Goldsmith uses to argue foreign intelligence doesn’t need a warrant:

In foreign intelligence investigations, the targets of surveillance are agents of foreign powers who may be specially trained in concealing their activities from our government and whose activities may be particularly difficult to detect.

Of course, the whole point of this program is to find people who might be agents of foreign powers; we don’t know that they are until the investigation finds them.

P40-41: This is a troubling assertion about Keith:

In addition, there is a further basis on which Keith is readily distinguished. As Keith made clear, one of the significant concerns driving the Court’s conclusion in the domestic security context was the inevitable connection between perceived threats to domestic security and political dissent. As the Court explained, “Fourth Amendment protections become the more necessary when teh targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute when the Government attempts to act under so vague a concept as the power to protect “domestic security.” Keith 407 US at 314.see also id at 120 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.”) Surveillance of domestic groups necessarily raises a First Amendment concern that generally is not present when the subjects of the surveillance are the agents of foreign powers.

Aside from the obvious fact that the surveillance Goldsmith was justifying almost always had a religious component, a lot of the evidence picked up on alleged domestic Islamic terrorists amounts to speech. And often a disagreement about things like the Iraq war. It’s more of the tautological construction, if foreign then not First Amendment, when that is obviously not the case. Note, there’s a big redaction after the passage above which I suspect is nonsense.

P41: Goldsmith:

Second, it also bears noting that in the 1970s the Supreme Court had barely started to develop the “special needs” jurisprudence of warrantless searches under the Fourth Amendment.

I’m gonna have to either return to this or just hope bmaz hits it. It’s like every section of this opinion Goldsmith chooses to deal with a second, exclusive period of history.

P43: Note how Goldsmith pretends Congress passed FISA in 2001, not 1978.

To be more precise, analysis of [redacted–name of program] presents an even narrower question: namely, whether, in the context of an ongoing armed conflict, Congress may, through FISA, impose restrictions on the means by which the Commander in Chief may use the capabilities of the Department of Defense to gather intelligence about the enemy in order to thwart foreign attacks on the United States. Putting aside the fact that this program identified who the enemy is, as much as collecting information from that enemy, Goldsmith here betrays his task. Not to see whether Bush acted properly in not asking for legislation to amend FISA, but to suggest that FISA is an addition to the already existing program. Which of course it was not.

This is made more clear a few lines later:

In almost every previous instance in which the country has been threatened by war or imminent foreign attack and the President has taken extraordinary measures to secure the national defense, Congress has acted to support the Executive through affirmative legislation granting the President broad wartime powers, or else the Executive has acted as exigent circumstances in the absence of any congressional action whatsoever.

In his book Goldsmith repeatedly says Bush’s (Cheney’s, Addington’s) mistake was in not consulting Congress. And that’s evident here, too: of course Congress made affirmative legislation. It’s called the PATRIOT Act. But for some reason the President refused to ask for these powers.

P46: Note that in his review of enumerated Congressional powers Goldsmith doesn’t consider the power to declare war?

P51: Note the reference to the President’s threat assessment on March 11, 2004. You’d think that’d mention the Madrid bombing that happened that day. But of course at that point Aznar was pretending that ETA caused the bombing, not an al Qaeda inspired–but not AQ direct–group.

P61: I presume Goldsmith didn’t have a straight face when he wrote the last full paragraph trying to distinguish Youngstown–bc Congress gave other alternatives to resolve labor disputes–from FISA, which Congress was actively changing per the Executive’s requests in 2001.

P70ff: Note how here Goldsmith argues not just that FISA can’t restrict POTUS bc of inherent power, but it can’t bc FISA is so onerous that “it ‘render[s] it impossible for the President to perform his constitutionally prescribed functions.’ [Redacted–curious what this cite is] Several factors combine to make the FISA process an insufficient mechanism for responding to the crisis the President has faced in the wake of the September 11 attacks.” It then has a totally redacted discussion about why FISA makes POTUS’ job impossible. This strikes me as the reason why Goldsmith’s innocuous discussion of the switch to 72-hour warrant requirement is classified TS. Because Congress was working to make it less onerous.

P102: Jack Goldsmith, bleeding heart defender of Wall Street:

The nation has already suffered one attack that disrupted the Nation’s financial center for days and that successfully struck at the command and control center for the Nation’s military.

Glad to see those 3000 people didn’t weigh in here. I’ll return to this logic in upcoming days. After all, if the risk of disruption on Wall Street gives the President super-human powers, then shouldn’t we be using them to reel in Wall Street now?

P105: Goldsmith’s stawmen:

Thus, a program of surveillance that operated by listening to the content of every telephone call in the United States in order to find those calls that might relate to terrorism would require us to consider a rather different balance here.

Right. They’re not taking “content” of every telephone call. They’re taking data.

CRAZY PETE HOEKSTRA’S NSA DIRTY WORK AND NIDAL HASAN

I’m almost ready to post my next working thread on the EFF documents. But pages 121 through 125 of the OLC2 set deserves its own post.

It’s basically an email from Chris Donesa, a Republican HPSCI staffer, to a bunch of people at DNI, DOJ, and NSA who had been involved in the Protect America Act passage, followed by a letter Crazy Pete Hoekstra sent to NYT’s Bill Keller. He includes the message, “Happy Tuesday to all” as the only explanation.

The copy of Crazy Pete’s letter in the EFF documents is hard to read, but luckily Crazy Pete sent a copy to Human Events, too. Crazy Pete’s letter is, in turn, a response to an editorial the NYT ran after Congress caved on the PAA and a James Risen article reporting on what the legislation actually did.

Crazy Pete claims to refute the editorial and (more importantly) the Risen article.

Only, the EFF document dump makes it clear that Crazy Pete is, um, lying his ass off.

Every single one of Crazy Pete’s “refutations” completely avoid the charges made by the NYT, even while hiding the now provable fact that the NYT was absolutely correct. For example, this “refutation:”

• Misstatement and Exaggeration: “[T]he court’s only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted.”

o Facts: This is a false and selective characterization of the plain provisions of the law. Third parties who are asked to assist the intelligence community under the law may challenge the legality of any directive by filing a petition with the FISA Court.

Much of the discussion leading up to passage of PAA, we now know, involved preventing prior court review at all cost. And the FISCR ruling released earlier this year–on a PAA generated order–makes it clear that even when a service provider did challenge an order, all the court did was to “review and approve the procedures” the government used.

So, let me repeat. Crazy Pete Hoekstra was lying–apparently at the behest of the NSA and DNI. Just if all that wasn’t already clear.

But that’s why I find Crazy Pete’s objections to this Risen passage so interesting.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e- mail messages going in and out of the United States.

I’ll treat the first three of Crazy Pete’s “refutations” one by one.

FISA is an extremely complex statute that is difficult enough to understand and apply even when it is not being deliberately distorted. Unfortunately, instead of reading the law, the New York Times chose to make up new assertions wholly unsupported by the facts. This did a disservice to our intelligence professionals who are attempting to keep America – especially prominent targets such as New York – safe.

This passage makes no concrete refutation of Risen’s claim at all. Rather, it instead insinuates that Risen was attacking intelligence professionals, but does not show his claim to be false.

The new law plainly and expressly provides that surveillance must be “directed at” (targeted to) a person reasonably believed to be located outside the United States. Under well- established FISA practice and precedent, this only permits surveillance of foreign targets on foreign soil, not Americans on American soil. The Intelligence Community must develop procedures to ensure this is the case, and those procedures must be reviewed by the FISA Court.

Here, of course, Crazy Pete is playing with the meaning of the word “target,” and all but confirming Risen’s other assertion that I treated above that the FISC had been relegated to “reviewing procedures” (and, again, the FISCR shows that that is in fact what FISC did). With this, Crazy Pete tries to deny that US persons in contact with targets will also be wiretapped (remember, too, that the DOJ/NSA/DNI was also demonstrably playing with the meaning of the word “surveillance” throughout the FISA reform process).

Any surveillance targeting Americans in the United States would still require an individual warrant from the FISA court, and any incidental collection of the communications of U.S. persons would still be subject to extensive minimization procedures. The bill expressly requires such minimization procedures to be imposed on any surveillance conducted under the new law, and those procedures must also be reviewed by the FISA court,

This is where things get interesting. Of course, Crazy Pete is still playing his little game with the word “target.” But then he claims that any US persons “incidentally” collected through the wiretaps of the people overseas would be minimized.

Which brings us to Nidal Hasan.

Granted, Nidal Hasan’s emails to Anwar al-Awlaki were collected under FAA authority, not under PAA authority. So we can’t assume that minimization would be the same. But in August 2007, when he was writing refutations at the behest of NSA, he was claiming that someone like Nidal Hasan’s communication with Awlaki would undergo “extensive minimization.”

Yet for the last week, Crazy Pete has been accusing the Obama Administration of failing to do what it should and could under the law to track Nidal Hasan. He’s even suggesting they weren’t using existing authority that had been used until very recently. I maintain that the fault–at least given the facts we know–lies at Walter Reed, and not with the Joint Task Force that analyzed the emails. But in any case, the only way that Hasan’s emails would have been tracked and Hasan himself would have become a target (or at least a database focus) would be if the emails themselves weren’t minimized.

Crazy Pete circa 2007 is telling Crazy Pete circa 2009 he’s full of shit. Or vice versa. Or both.

There’s a real continuity between this two-year impotent attempt to refute James Risen and his bluster from the last week. At their core, both appear to be attempts to manipulate asymmetric information to grasp powers for NSA that Congress and the American people don’t necessarily support, all while pretending what NSA is doing is what NSA says it’s doing.

Update: Then again, if Hasan’s emails were more belligerent than previously reported, then minimization should not have been an issue at all (though the story remains that the emails were determined not to be threatening, and therefore should have been minimized).

DENNIS BLAIR’S SPOKESPERSON: THE DOMESTIC SURVEILLANCE PROGRAM VIOLATES THE FOURTH AMENDMENT

I’ve already posted on the general contents of Lichtblau and Risen’s seemingly quarterly report that illegal wiretapping is still going on–including the eye-popping news that Bill Clinton’s emails were illegally accessed. But I wanted to focus on one really critical passage of the story.

The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman for Dennis C. Blair, the national intelligence director, said that because of the complex nature of surveillance and the need to adhere to the rules of the Foreign Intelligence Surveillance Court, the secret panel that oversees surveillance operation, and “other relevant laws and procedures, technical or inadvertent errors can occur.” “When such errors are identified,” Ms. Morigi said, “they are reported to the appropriate officials, and corrective measures are taken.” [my emphasis]

The DNI is basically blaming its "technical or inadvertent errors" [no word about Clinton’s emails, which can’t be inadvertent] on "the need to adhere to the rules of FISC and other relevant laws and procedures."

Not only does this not make sense, but it completely undercuts any claim that this program is legal under the Fourth Amendment.

In one of the most important posts of mine that few people ever read, I explained why. I showed that the FISA Court of Review understood the Protect America Act (and I believe the same holds true for the FISA Amendment Act program) does not, by itself, comply with the Fourth Amendment. Rather, the FISCR explicitly said that the wiretap program only complied with the Fourth Amendment’s probable cause requirement through the application of a provision in Executive Order 12333 that requires only that the Attorney General "determine" that surveillance is directed against an agent of a foreign power. And the PAA program (and, I assume, the FAA program) only complies with the Fourth Amendment’s requirement for particularity through a set of procedures not mandated by PAA or FAA, and not shared with the telecoms handing over their customer data.

The FISCR explained:

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre- surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case. [my emphasis]

These are precisely the procedures, I suspect, that the DNI’s office is now blaming for the "inadvertent" review of US person emails.

And you can see why, from the rest of the article. Knowing that these procedures are the only thing fulfilling the Fourth Amendment’s requirement for particularity, read this passage, which appears to describe precisely the procedures in question.

He said he and other analysts were trained to use a secret database, code- named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

Well, no wonder the procedures don’t prevent the "inadvertent" access of emails!!! The procedures start by allowing analysts to review 30% of every database search!! So already, a US person has a 30% chance that her emails will get swept up and reviewed by someone at NSA!! And the NSA is relying on just those procedures to prevent someone from giving into natural curiosity to access, say, the ex-President’s emails, if they happen to be among the 30% of emails he accesses.

And then there’s the possibility that the NSA will just happen to suck up and review an extra thousand emails in its search.

“Say you get an order to monitor a block of 1,000 e-mail addresses at a big corporation, and instead of just monitoring those, the N.S.A. also monitors another block of 1,000 e-mail addresses at that corporation,” one senior intelligence official said. “That is the kind of problem they had.”

A thousand extra email addresses here and a thousand extra email addresses there, and pretty soon you’ve thrown all claim to particularity out the window. (Incidentally, the people serving as sources for this story aren’t fucking around–the surest way to get people concerned about domestic surveillance is to tell them their business emails are being monitored.)

So here’s what we know about our nation’s domestic surveillance program:

1. The FISA Court of Review has revealed that the only thing that fulfills the Fourth Amendment’s particularity requirement is a set of secret procedures 2. The DNI has suggested that those procedures don’t work

Call me crazy, but between the DNI and the FISCR, I think they’ve made the case that their own program is illegal.

WHAT DID BUSHCO HIDE BY NOT REVEALING SURVEILLANCE ACTIVITIES?

Via Threat Level, I see the EPIC has written a letter to Pat Leahy complaining about the Bush Administration’s failure to comply with requirements that it release details on the number of "pen register" and "trap and trace" orders.

As a reminder, "pen registers" are when the government collects the metadata from your telecom contacts–the phone numbers you call and the length of calls, as well as whom you email–to figure out who you’re talking to. And "trap and trace" orders are when the government figures out who is calling (or emailing) you. In addition, the EPIC letter explains that law enforcement has recently been using "hybrid" orders to pinpoint cell phone (and therefore, your) location.

Law enforcement agents use "hybrid" orders for cellular location information. Hybrid orders seek to determine a suspect’s past and future location based on non-content data transmitted by the suspect’s cellular phone. The government has engaged in this type of surveillance by invoking a combination of authorities under the Pen Register Act and the Stored Communications Act. For pen registers and trap and trace, the government doesn’t have to get a warrant (the hybrid stuff is still up in the air). Instead, since 1986, DOJ has been required to report how much of this stuff is going on.

But, as EPIC explains, DOJ didn’t release the report publicly for the years 1999 through 2003, and only gave incomplete information to Congress at all in November 2004. And DOJ appears not to have released reports at all since 2004.

You probably see where I’m going with this.

We know, of course, that Bush’s illegal wiretap program involved some kind of data mining aspect. It appears that they were doing pattern analysis based on things like length and recipient of call–precisely the kind of thing you get from pen registers–to determine whom to further wiretap.

Yet we have only incomplete information from the first three years of Bush’s illegal wiretap program. EPIC explains that DOJ did not include the suspected offenses that law enforcement officers were trying to investigatre, nor did it list which officers were doing the investigations.

And then we have nothing–no data–for the years after Jim Comey and Jack Goldsmith supposedly put the illegal wiretap program back on legal footing (and remember–the data mining aspect of the program was reportedly one of the things that Comey et al went crazy over).

Now, the failure to report any information may be at least an attempt on the part of the Bush Administration to hide abuses of these authorities (How useful would it be, for example, to learn precisely how often Chris Christie–who is running for governor in NJ–used these "hybrid" orders and on whom?). But I’m more interested in whether, after the Comey rebellion, they decided to justify data mining using an expansive application of pen registers; I’ve already shown that they actually used a hybrid approach to justify the program itself, and I would be unsurprised if an abuse of pen registers is part of it.

RUSSELL TICE CONFIRMS EVERYTHING WE'VE SURMISED ABOUT BUSH'S ILLEGAL WIRETAP PROGRAM

Teddy linked to the stunning Russell Tice appearance on Keith O tonight. I wanted to add a few points.

First, Tice’s description of the program confirms everything we have surmised about the program. The program:

Established the means to collect all American communications Analyzed meta-data to select a smaller subset of communications to tap further Conducted human analysis of those messages

That is, the Bush administration used meta-data (things like length of phone call that have nothing to do with terrorism) to pick which communications to actually open and read, and then they opened and read them.

And of course, everyone’s communications–everyone’s–were included in the totality of communications that might be tapped. Including–especially–journalists. We knew that both Christiane Amanpour and Lawrence Wright’s communications were tapped. Well, apparently so were every other journalists’.

Tice figured out that they were getting journalists’ communications when he realized that they were separating out all the journalists’ communications–but then ensuring that those communications were still collected 24/7.

I guess I was right to doubt the government’s claim–made to the FISCR–that it does not have a database of the communications of incidentally collected non-targeted persons, seeing as how this separate collection of journalists’ communications would be just that kind of database. (Unless, of course, the Bush thugs want to admit they deliberately targeted journalists as suspected terrorists.)

Tice also explained how BushCo evaded oversight by claiming some of this program was an intelligence program, and some was a military program. (Presumably, though, my smart Senator Carl Levin might notice something like that…) That strategy seems remarkably similar to the means by which BushCo legally justify the PAA (and presumably the program operating without Congressional sanction before it)–by using hybrid means of approving the program so as to eviscerate the Fouth Amendment. Nothing was too cute for these folks in their efforts to gut the Constitution, I guess.

Now that Tice has confirmed that all those journalists who have been poo-pooing the blogosphere for its concerns about the program in the last three years were being wiretapped, we may finally get some large scale press attention on this. Russ Feingold is going to look pretty damn smart for insisting that this is precisely what was going on. And perhaps, finally, we’ll have some accountability on these issues.

As I’ve been hinting, I did my small part in the hopes of accountability today; hopefully I’ll have the video done to explain tomorrow.

I’m beginning to believe we might just hold these fuckers accountable yet.

HINTS THAT THE FISCR PLAINTIFF IS AN EMAIL PROVIDER

I’ve said in the last two threads on the FISCR opinion that the plaintiff is an email provider. Here’s why I believe that to be true.

On February 29, 2008, the Computer & Communications Industry Association wrote the Members of the House (which was then considering its own amendments to FISA, distinct from those that had been already passed in the Senate), lobbying against retroactive immunity. CCIA, recall, is the trade group for a bunch of tech companies, including email providers Yahoo, Microsoft, and Google. That letter reads:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

Therefore, CCIA urges you to reject S. 2248. America will be safer if the lines are bright. The perpetual promise of bestowing amnesty for any and all misdeeds committed in the name of security will condemn us to the uncertainty and dubious legalities of the past. Let that not be our future as well. [my emphasis]

On February 29, 2008, at a time when the plaintiff in this case was almost certainly actively pursuing the case (I’ll do a review of timing in a later post), the trade association for the country’s biggest free email providers was lobbying:

Against retroactive immunity for those companies participated in violations of federal law, suggesting that the trade organization believed earlier cooperation was clearly illegal For prospective immunity, which had been included in PAA and was included in every FISA amendment ever contemplated, suggesting that association members intended to cooperate going forward For "bright lines" describing the requirements for cooperation with the government, suggesting that association members cared first and foremost about the clarity of the law and believed the law, in the past, had not been clear

If that doesn’t, by itself, convince you that a member of the CCIA was the company objecting to the government’s byzantine assault on the Fourth Amendment, in discussions I had about this letter with a number of people, I learned that there were hints of an email provider fighting orders in the FISA courts.

I believe this suit is the rumored suit.

In other words, when you read the opinion and see the concerns about particularity, understand that we’re almost certainly talking about email servers, and not phone calls among individuals.