Who Reads the Readers?
This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.
Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:
It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.
The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.
Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers. This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.
You know, the one we’ve spent the past eight years dismantling.
Filed under: General; Law and Civil Liberties; Telecom, Internet & Information Policy
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
If You Can’t Trust a Spy, Who Can You Trust?
As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require. The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.
In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.
But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.
That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:
A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”
So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.
Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
What You Don’t Know Won’t Hurt You (Surveillance State Edition)
While there are many choice tidbits to relate from Tuesday’s hearings on PATRIOT Act reform at the House Judiciary Committee’s Subcommittee on the Constitution—not least the fellow who had to be wrestled from the room, literally kicking and screaming, after he tried to stand and interrupt with a complaint about alleged FBI violations of his civil rights—I’ll just relate a novel theory of the Fourth Amendment advanced by Rep. Steve King (R-Iowa).
The ACLU’s Mike German, a former FBI agent turned surveillance policy expert, was explaining that it’s hard to know whether expansive surveillance powers are being abused, they’re mostly used in secret and deployed via third-parties like financial institutions and telecoms, who have little incentive to raise much fuss or draw attention to their cooperation. King interrupted to suggest that if we weren’t hearing about constitutional challenges, then it was probably safe to assume there was no Fourth Amendment harm. German tried to reiterate that the people whose privacy interests were directly harmed typically would not know they had ever been targeted.
That, King declared, was precisely the point. Surveillance of which the subject never became aware, he said, could be compared to a “tree falling in the forest” when nobody’s around. In other words, if you aren’t ultimately prosecuted, and don’t even feel subjective distress as a result of the knowledge that your private records or communications have been pored over, then it’s presumably no harm, no foul. If we take this line of thinking literally, sufficiently secret surveillance can never be unconstitutional, which would seem to make King a spiritual cousin of Richard “if the president does it, that means it’s not illegal” Nixon.
Gallup Poll: Federal Reserve Makes the IRS Look Good
A recent Gallup Poll surveyed the public’s impression of how various federal agencies were doing their job. Of the agencies evaluated, on the bottom was the Federal Reserve Board. Only 30 percent of the respondents rated the Fed’s performance as either excellent or good. I can understand now why Chairman Bernanke felt the need to take his act on the road. Even the IRS managed to get 40 percent of respondents to see its job performance as excellent or good. A majority of the public, 57 percent, sees the Fed’s current performance as either poor or fair.
The result is not just driven by a general public disdain for federal agencies; over a majority of respondents thought such agencies as the Center for Disease Control, NASA and the FBI were doing an excellent or good job.
Nor is the result driven by public ignorance or indifference to the Fed; only a few years ago, back in 2003, 53 percent of Americans said the Federal Reserve was doing an excellent or good job and only 5% called its job performance poor. But then, the Fed was also giving us negative real interest rates at that time as well. Perhaps there’s a good reason to insulate the Fed from short-term public and political pressures. Let’s hope Chairman Bernanke does not read these results as an excuse for repeating the Fed’s 2003 monetary policies.
It Is a Checkpoint, After All
The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.
The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Cheney vs. Obama: Tale of the Tape
In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.
The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.
However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Former FBI Agent: Torture Sucks. Don’t Do It.
The Senate Judiciary Committee hearings produced an ugly picture of the role torture played in interrogating Al Qaeda leaders. The testimony of former FBI agent Ali Soufan shows how traditional intelligence techniques worked on Abu Zubaydah and “enhanced” techniques did nothing to advance national security interests:
Immediately after Abu Zubaydah was captured, a fellow FBI agent and I were flown to meet him at an undisclosed location. We were both very familiar with Abu Zubaydah and have successfully interrogated al-Qaeda terrorists. We started interrogating him, supported by CIA officials who were stationed at the location, and within the first hour of the interrogation, using the Informed Interrogation Approach, we gained important actionable intelligence.
We were once again very successful and elicited information regarding the role of KSM as the mastermind of the 9/11 attacks, and lots of other information that remains classified. (It is important to remember that before this we had no idea of KSM’s role in 9/11 or his importance in the al Qaeda leadership structure.)
Soufan then recounts a tug-of-war between the interrogators and the contractors brought in to apply the third degree. The intelligence and law enforcement professionals struggled to reestablish rapport with Zubaydah after each iteration of harsh interrogation tactics.
The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At that time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used. After a few days of getting no information, and after repeated inquiries from DC asking why all of sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation.
We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence.
The enhanced interrogation techniques were not only inferior to traditional interrogation techniques, they proved counterproductive. The use of illegal techniques resurrected the “wall” between the CIA and the FBI with regard to these detainees. This prevented FBI experts who knew more about Al Qaeda than anyone else in the government from questioning them. Plus, as Soufan recounts, coercive techniques make detainees tell you what you want to hear, whether it is true or not. As Jesse Ventura says, “you give me a waterboard, Dick Cheney, and one hour, and I’ll have him confess to the Sharon Tate murders.”
Torture did not advance the work of picking apart Al Qaeda, it disrupted it.
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