Released Memos Justifying Warrantless Wiretapping Point To Limitless Executive Branch Authority

from the in-times-of-war,-we'll-do-whatever-we-want dept

The government's predilection for waiting until late Friday to deliver bad news remains unchanged. Two memos justifying wireless wiretapping were released Friday night, buying it a few days time to prep before dealing with any uncomfortable questions raised by these documents.

Both memos [PDF links: first, second] have multiple redactions. The first memo has had entire groups of pages withheld, as well as pages so heavily-redacted they may as well have been deleted. Additional details are scant, leaving readers to read between the redactions in hopes of cobbling together the government's rationale for the warrantless wiretapping of calls originating in the United States.

What does remain is mostly post-9/11 justifications about needing to respond to a new threat in new ways. And that "new way" was apparently to give the President a blank surveillance check to do with what he wished.

The broad outlines of the argument — that the president has inherent constitutional power to monitor Americans’ communications without a warrant in a time of war — were known, but the sweep of the reasoning becomes even clearer in the memos written by then-Assistant Attorney General Jack Goldsmith, who was head of President George W. Bush’s Office of Legal Counsel.

“We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief . . . that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority” to order warrantless wiretapping — “an authority that Congress cannot curtail,” Goldsmith wrote in a redacted 108-page memo dated May 6, 2004.

The Stellar Wind program, as it was known, was implemented in the wake of the 9/11 attacks, without Congressional approval. The warrantless wiretapping was rationalized into legality years after implementation, and memos like these were the delivery vehicles. The government doesn't trust Americans to understand why it believes a pseudo-war justifies violations of civil liberties. Those parts are blacked out. What we're left with is supposed to be enough.

And it's not just Stellar Wind. Other dragnet programs (internet/email/phone metadata) are rationalized as well in these pages. The May 6, 2004 memo by Jack Goldsmith does everything it can to eliminate Fourth Amendment protections, as Marcy Wheeler points out.

It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment.

The second memo, also written by Goldsmith, does more of the same. This one throws in the then-recent decision by the Supreme Court, finding the detainment of a US citizen (Yaser Esam Hamdi) in Afghanistan was justified because it occurred during a time of war. According to Goldsmith, intercepting communications without a warrant is a "fundamental and accepted" part of waging war. Again, the argument finds in favor of the Executive Branch acting unilaterally to combat terrorism. Anything more detailed or subtly written is buried behind black bars or removed entirely.

But the gist of it is: Smith v. Maryland means intelligence agencies can collect nearly anything they deem metadata without tripping over the Fourth Amendment -- and if these small limits are exceeded, the Executive Branch has the power to override any objections.

Filed Under: doj, jack goldsmith, justification, surveillance, warrantless wiretapping

Judge Gives DOJ Until The End Of The Month To Submit Declassified Opinion Containing FISA Court's Justifications For The Section 215 Program

from the surveillance-state-sausage-making dept

It appears the government will finally be releasing the FISA court's thought process justifying the mass harvesting of Americans' metadata from fully-immunized telcos under the Section 215 program (now 501). An earlier court order from FISA judge Dennis Saylor discussing the potential release of this court opinion described it thusly:

The government has identified the Opinion issued in Docket Number BR 13-25 on February 19, 2013, as one that "contain[s] analysis by this Court evaluating the meaning, scope, and/or constitutionality" of Section 215 of the USA PATRIOT Act, codified as amended at 50 U.S.C. § 1861.

Whether it will be instructive and enlightening (rather than stuffed full of Third Party Doctrine bullshit and circular "it's legal because it's legal" reasoning) remains to be seen. But the last two words of that previous sentence are something at least: it will "be seen." And, apparently, with a minimum of redactions.

For the reasons stated herein, the Court is directing the government to prepare and declassify a redacted version of the opinion issued by the Foreign Intelligence Surveillance Court (FISC) in Docket Number BR-25 on February 19, 2013.

The ACLU (and others) have pushed for a release of this particular FISC opinion for more than a year now. The court doesn't even attempt to address the First Amendment implications of withholding the opinion from the public because there are plenty of other angles justifying its release. The court notes that the release would serve the public's interest as recent disclosures (both authorized and unauthorized) have brought the Section 215 program into the court of public opinion (as well as actual federal courtrooms).

While the FISA court may have arrived at this conclusion based on ongoing events, the government arrived somewhere completely different.

After appropriations had been reinstated and a timetable for declassification review had been set, the government advised that, “[a]fter careful review of the [February 19, 2013] Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.”

The FISA court asked for the combined brain power of the DOJ, Executive Branch and an unspecified number of "senior intelligence officials" to explain their thought process and got a lot of unintelligible mumbles and floor-staring in return.

Noting that “the government has provided no explanation of this conclusion,” the Court ordered the government to submit “a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form.”

Duly chastened, the brain trust resorted to one of its favorites: making this info public would jeopardize ongoing investigations. But it conceded that the opinion could still be declassified if a sufficient amount of black ink is spilled. The FISC pressed harder, asking for narrower redactions that removed only the targets in question, rather than the accompanying language that would clarify the court's stance on the bulk collection issue. Surprisingly, despite its lack of practice with operating anything narrowly-defined or targeted, the government managed to come up with a redacted version that satisfied the unexpectedly demanding FISA court.

[T]he Court notes that releasing the February 19, 2013 Opinion pursuant to the Second Redaction Proposal achieves the basic objective sought by the movants: disclosure of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts. There is an inherent risk that the end product of such an exercise “may confuse or obscure, rather than illuminate, the decision[ ] in question.” In re Motion for Release of Court Records, 526 F. Supp.2d at 495. On balance, however, the Court is satisfied that publication of the February 19, 2013 Opinion in conformance with the Second Redaction Proposal would enhance, rather than detract from, public understanding of the Court’s reasoning as to the legal issues presented.

Well, I guess we'll see what it looks like when we get it. August 29th is deadline for the submission of a formally declassified version of the (supposedly) narrowly-redacted opinion. The FISA court then needs to give it a quick once-over before publishing it "immediately" to its website. I don't expect to see it any sooner than the end of this month, but we'll be taking a good look at it when it finally arrives.

Filed Under: bulk data collection, bulk phone records, doj, fisa court, fisc, foia, justification, legal justification, nsa, section 215

NSA Agents Told To Withhold Target Information From Those In Charge Of Oversight

from the and-the-hits-keep-coming dept

There's so much information that's coming out of last night's Washington Post bombshell that just continues to yield incredible information about what defenders of these programs have been saying as compared to what's actually happening. Here's another one. One of the documents released with the report, via Ed Snowden, shows that NSA agents were directly told to give their overseers as little information as possible. The document explains to agents the process for justifying why they were requesting targeting (i.e., a more detailed look concerning an individual or group -- not just at that person's communications, but potentially anyone even remotely connected to them), and makes it clear that they are to give the bare minimum necessary to fulfill their reporting requirements, but not even the slightest bit beyond that. In fact, they're told to give a single short sentence, and to make sure it includes no "extraneous information."

The basic premise of this process is to memorialize why you the analyst have requested targeting. This rationale will be provided to our external FISA Amendment Act (FAA) overseers, the Department of Justice and Office of the Director of National Intelligence, for all FAA targeting.

While we do want to provide our FAA overseers with the information they need, we DO NOT want to give them any extraneous information.... This rationale can be no longer than one short sentence.

[....] Your rationale MUST NOT contain any additional information including: probable cause-like information (i.e., proof of your analytic judgment), how you came to your analytic conclusions, any RAGTIME information, classification marking or selector information.

The document goes on to list a variety of "example" rationale sentences, all pretty short and sweet, which basically demonstrate to NSA agents how to remove any pertinent information for oversight, while still giving a "reason" for targeting someone. It's a lesson in stripping out information and, as the Washington Post notes, replacing it with "generic" info that will pass muster with the folks supposedly in charge of oversight. As an aside, while parts of them are redacted, there are a few "fake" names given, including "Mohammad Badguy" and "Muhammad Fake Name." No profiling there.

Either way, this once again suggests that the "oversight" going on here is something of a joke. Analysts are directly being told to be careful not to explain very much at all, giving the briefest ("one short sentence, no extraneous information") basis for getting access to all sorts of information concerning a "target" -- which might include a variety of communications and metadata concerning a huge number of people very, very, very loosely connected with that target. It certainly suggests that this idea of "oversight" is pretty laughable. Concoct a one sentence "rationale" that sounds vaguely plausible, and it appears that no one's going to ask any questions at all.

Filed Under: justification, nsa, nsa surveillance, oversight, targeting, withhold information