One would like to say: whatever is going to seem right to me is right. And that only means that here we can’t talk about ‘right.’ — Ludwig Wittgenstein, Philosophical Investigations §258

Among the arguments for which the great 20th century philosopher Ludwig Wittgenstein is famous, perhaps the best known—and most controversial—is his argument for the impossibility of a truly “private language.” Since Wittgenstein’s own language was, if not quite “private,” notoriously opaque, it’s a matter of some controversy exactly what the argument is, but here’s a very crude summary of one common interpretation:

Language is, by it’s nature, a rule-governed enterprise. Under normal circumstances, for instance, I use words correctly when I say “there’s a yellow school bus outside,” just in case there is a yellow school bus outside. If, instead, there’s a blue Prius, then I may be lying, or trying to make some sort of signally unfunny joke, or confused about either the facts or about what words mean—but I am, one way or another, using the words “incorrectly.” And indeed, the only way words like “yellow” and “school bus” can have any specific meaning is if they’re correctly applied to some things, but not to others.

Now suppose I decide to invent my own private language, meant to describe my own internal sensations and mental states, maybe for the purpose of recording them in a personal diary. On the first day, I experience a particular sensation I decide to call “S,” and record in my diary: “Today I felt S.” As time passes, on some days I write S to describe my private sensations, and on other days maybe I come up with different labels—maybe T, U, and V. This certainly looks like a private language, but there’s a problem: each time I write down “S,” the idea is suppose to be that I’m recording that I had the same sensation I had the first day—S—and not T, U, or V. But what’s the criteria for “the same”? What makes it true that my sensation on day 27 really is “more like” the sensation S that I had on day 1, and not V, which I first had on day 16? How do I know that this new sensation is really an S and not a V? (Say S was an itch in my hand; will I be correct to use S to refer to an itch in my shoulder? Or a pain in my hand? Or for that matter a pain in my shoulder?) The only criterion is that it seems or feels that way to me. But in that case, I’m not really engaged in a rule-governed language system at all, because in effect S applies to whatever I decide it does. Since I can never really be wrong, it doesn’t really make sense to say I’m ever right in my use either. Since the terms are truly private, there’s no difference between “correctly applying S” and “specifying in greater detail what S means.” What looked like a “private language” was actually just a kind of pantomime of a true, rule-governed language.

I found myself thinking of Wittgenstein and his private language argument, oddly enough, when thinking about the various forms of “secret law” and “secret legal interpretations” that increasingly govern our endless War on Terror. Consider, for instance, the secret legal memorandum justifying the assassination of Anwar al-Awlaki, discussed in an October 8 New York Times piece:

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

Whether or not one agrees with the substantive principle articulated here, this at least sounds like a real rule limiting the discretion of the executive. Except…who decides when a capture is “not feasible” (as opposed to merely risky, costly, or inconvenient)? The same executive who is meant to apply and be bound by the rule. Who determines when the threat posed by a citizen is “significant” enough to permit targeting? Again, the executive.

This is not, one might object, a wholly “private” interpretive problem, because the Office of Legal Counsel provides some kind of quasi-independent check: it will occasionally tell even a president that what he wants to do isn’t legal. But in that case, the president can simply do what Barack Obama did in the case of his intervention in Libya: keep asking different legal advisers until one of them gives you the answer you want, then decide that the more favorable opinion overrides whatever OLC had concluded.

Similar considerations apply to the “secret law” of surveillance. The FBI may issue National Security Letters for certain specific types of records—including “toll billing records”—without judicial approval, but these secret demands must at least be “relevant to an authorized investigation.” A weak limit, we might think, but at least a limit. Yet, again, the apparent limitation is illusory: it is the Justice Department itself that determines what may count as an “authorized investigation.” When Congress initially passed the Patriot Act a decade ago, an “authorized investigation” meant a “full investigation” predicated on some kind of real evidence of wrongdoing. Just a few years later, though, the attorney general’s guidelines were changed to permit their use in much more speculative “preliminary investigations,” and soon enough, the majority of NSLs were being used in such preliminary investigations. Needless to say, “relevance” too is very much in the eye of the beholder.

In most of these cases, the prospects for external limitation are slim. First, of course, anyone who disagreed with the executive’s secret interpretation would have to find out about it—which may happen only years after the fact in whatever unknowable percentage of cases it ever happens at all. Then they’d have to overcome the extraordinary deference of our court system to assertions of the State Secrets Privilege just to be able to have a court consider whether the government had acted illegally. In practice, then, the executive is defining the terms of, and interpreting, the same rules that supposedly bind it.

The usual thing to say about this scenario is that it shows the importance of checks and balances in preventing the law from being perverted or abused. If we think there is at least a rough analogy between these cases and Wittgenstein’s diarist writing in a “private language,” though, we’ll see that this doesn’t go quite far enough. What we should say, rather, is that these are cases where “secret law,” like “private language” is not merely practically dangerous but conceptually incoherent. They are not genuine cases of “legal interpretation” at all, but only a kind of pantomime. Perhaps what we should say in these cases is not that the president or the executive branch may have violated the law—as though there were still, in general, some background binding principles—but that in these institutional contexts one simply cannot speak of actions as “in accordance with” or “contrary to” the law at all.  Where the possibility of external correction is foreclosed, the objectionable and unobjectionable decisions alike are, inherently, lawless.

Wittgenstein, Private Language, and Secret Law is a post from Cato @ Liberty - Cato Institute Blog

It was ten years ago that President Bush signed the Patriot legislation into law.  If you wanted to find a textbook example of how not to make law, review the history of this law.  First, toss dozens of legal proposals together into a giant “package” and resist any effort to unpack it and hold separate votes.  Second, unveil the package at the last minute so members of Congress will not have an opportunity to study it.  Third, call it the “Patriot Act” so that any person voting against it will have to consider television ads declaring his/her opposition to the Patriot law.  Fourth, have the Attorney General declare over and over that if the law is not enacted right away, the terrorists may well launch more 9-11 attacks.  When members of Congress proposed attaching sunset provisions so that the law could go into effect, but would need reauthorization a few years later, the Bush administration fought the idea.

In the years afterward, the laws defenders like to pose the question, “Where are the abuses under this law?”  Some provisions, like those pertaining to National Security Letters, made it a crime for those served with them to tell anyone else about them.  That made it almost impossible to see what the FBI was doing.  In today’s Washington Post, Nicholas Merrill, explains what it was like to be on the receiving end of a National Security Letter:

In 2004, it wasn’t at all clear whether the FBI would charge me with a crime for telling the ACLU about the letter, or for telling the court clerk about it when I filed my lawsuit as “John Doe.” I was unable to tell my family, friends, colleagues or my company’s clients, and I had to lie about where I was going when I visited my attorneys. During that time my father was battling cancer and, in 2008, he succumbed to his illness. I was never able to tell him what I was going through.

For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, nor do I believe now, that the FBI’s gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight.

Read the whole thing.   Nick Merill spoke at a Cato Capitol Hill Briefing a few months ago.

Some parts of the Patriot law were sensible, others were not.  For Cato scholarship on the subject, go here and here [pdf].

Tomorrow, Cato will be hosting a double book forum featuring ACLU President Susan Herman and bestselling author David Shipler.   Patriot Act issues will come up.

10 Years of Patriot Act is a post from Cato @ Liberty - Cato Institute Blog

The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.

Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.

Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems precisely because they knew (or at least suspected) their methods weren’t quite kosher.

The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.

The Bureau characterizes the latest round of changes as “tweaks” to the most recent revisions. That probably understates the significance of some of the changes, but one reason it’s worrying to see another bundle of revisions so soon after the last overhaul is precisely that it’s awfully easy to slip a big aggregate change under the radar by breaking it up into a series of “tweaks.”

We’ve seen such a move already with respect to National Security Letters, which enable access to a wide array of sensitive financial, phone, and Internet records without a court order—as long as the information is deemed relevant to an “authorized investigation.” When Congress massively expanded the scope of these tools under the USA Patriot Act, legislators understood that to mean full investigations, which must be based on “specific facts” suggesting that a crime is being committed or that a threat to national security exists. Just two years later, the Attorney General’s guidelines were quietly changed to permit the use of NSLs during “preliminary” investigations, which need not meet that standard. Soon, more than half of the NSLs issued each year were used for such preliminary inquiries (though they aren’t available for mere “assessments”… yet).

The FBI, of course, prefers to emphasize all the restrictions that remain in place. We’ll probably have to wait a year or two to see which of those get “tweaked” away next.

FBI’s New Guidelines Further Loosen Constraints on Monitoring is a post from Cato @ Liberty - Cato Institute Blog

• Why are we still in Iraq?
• Despite the world’s greatest nation-building efforts, things in Bosnia are still getting worse.
• Vouchers offer parents more choice in education than they currently have, but education tax credits are still better at helping the poor.
• Although federal courts have already held parts of current National Security Letter statutes unconstitutional, we still have a way to go in restoring civil liberties in the post-9/11 era.
• While Osama bin Laden has been dispatched, we still have many issues to navigate in our national security strategy. Please join us on Facebook at 12:30 p.m. Eastern today, where Cato legal policy analyst David Rittgers, who served three tours in Afghanistan with Army Special Forces, receiving an Army Commendation Medal with “V” Device for valorous action and two Bronze Star Medals, will give a LIVE video update on the future of national security policy and strategy. Submit your questions for him here.

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

The people who receive “national security letters” from the FBI are basically conscripted into serving as secret informers for the government.  Some of those served happily comply and turn over whatever information the government is seeking, and sometimes even more.  Others resent the conscription and the impact it has on their lives.  Here’s an excerpt from an op-ed by Nick Merill, the president of a small internet access and consulting firm, about his experience:

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

Read the whole thing.  Mr. Merill will be speaking at Cato Capitol Hill Briefing tomorrow and will provide us with an update on his case since his 2007 op-ed in the Washington Post.

For related Cato work, go here.

‘I resent being conscripted as a secret informer for the government.’ is a post from Cato @ Liberty - Cato Institute Blog

Last night, By an overwhelming 86-to-12 margin, the Senate approved a temporary 90-day extension of three controversial provisions of the Patriot Act scheduled to sunset at the end of the month. The House just voted to move forward on a parallel extension bill, which will presumably pass easily. Because I’m seeing some civil libertarian folks online reacting with dismay to this development, I think it’s worth clarifying that this is relatively good news when you reflect on the outlook from just a couple of weeks ago.

The House has already approved a one-year extension that would plant the next reauthorization vote on the right eve of primary season in a Presidential election cycle, all but guaranteeing a round of empty demagoguery followed by another punt. As of last week, everyone expected the Senate to bring Sen. Dianne Feinstein’s three year reauthorization—which also extends the odious FISA Amendments Act of 2008—to the floor. The discussion on the Senate floor last night makes it clear that this didn’t happen because of pushback from legislators who were sick of kicking the can and wanted time to hold hearings on substantive reforms.

This is actually a better outcome than simply letting the three sunsetting powers lapse—which, realistically, was not going to happen anyway. First, because at least one of the expiring authorities, roving wiretaps, is a legitimate tool that ought to be available to intelligence investigators if it’s amended to eliminate the so-called “John Doe” loophole. Second, because while all three of these provisions have serious defects that raise legitimate concerns about the potential for abuse, they are collectively small beer compared with National Security Letters, which have already given rise to serious, widespread, and well documented abuses. One of the three sunsetting powers has never been used, and the other two are invoked a couple dozen times per year. All three involve court supervision. The FBI issues tens of thousands of National Security Letter requests each year, the majority targeting American citizens and legal residents, without any advance court approval. The vast majority of the thousands of Americans whose financial and telecommunications records are seized each year are almost certainly innocent of any wrongdoing, but their information is nevertheless retained indefinitely in government databases. With very few exceptions, these people will never learn that the government has been monitoring their financial transactions or communication patterns. Forcing a debate now on the expiring provisions opens a window for consideration of proposals to rein in NSLs—including a new sunset that would create pressure for continued scrutiny.

A new Pew poll released this week reports that Americans remain fairly evenly split on the question of whether the Patriot Act is “a necessary tool that helps the government find terrorists” or “goes too far and poses a threat to civil liberties.” (Perhaps unsurprisingly, with the change of administration, Democrats have become more supportive and Republicans somewhat more skeptical.) But this is actually a signally unhelpful way to frame debate about legislation encompassing hundreds of reforms to the byzantine statutory framework governing American intelligence investigations—more a toolbox than a “tool.” The question shouldn’t be whether you’re “for” or “against” it, but whether there are ways to narrow and focus particular authorities so that legitimate investigations can proceed without sweeping in so much information about innocent people. A three-month extension signals that Congress is finally, belatedly, ready to start having that conversation.

Why the Senate’s Vote on the Patriot Act Is Actually Pretty Good News is a post from Cato @ Liberty - Cato Institute Blog

The secrecy surrounding government surveillance is a constant source of frustration to privacy activists and scholars: It’s hard to have a serious discussion about policy when it’s like pulling teeth to get the most elementary statistics about the scope of state information gathering, let alone any more detailed information. Even when reporting is statutorily required, government agencies tend to drag their heels making statistics available to Congress — and it can take even longer to make the information more widely accessible. Phone and Internet companies, even when they join the fight against excessive demands for information, are typically just as reluctant to talk publicly about just how much of their customers’ information they’re required to disclose. That’s why I’m so pleased at the news that Google has launched their Government Requests transparency tool.  It shows a global map on which users can see how many governmental demands for user information or content removal have been made to Google’s ever-growing empire of sites — now including Blogger, YouTube, and Gmail — starting with the last six months.

So far, the information up there is both somewhat limited and lacking context.  For instance, it might seem odd that Brazil tops the list of governmental information hounds until you bear in mind that Google’s Orkut social network, while little-used by Americans, is the Brazilian equivalent of Facebook.

There are also huge gaps in the data: The United States comes in second with 3,580 requests from law enforcement at all levels, but that doesn’t include intelligence requests, so National Security Letters (tens of thousands of which are issued every year) and FISA warrants or “metadata” orders (which dwarf ordinary federal wiretaps in number) aren’t part of the tally. And since China considers all such government information requests to be state secrets — whether for criminal or intelligence investigations — no data from the People’s Republic is included.

Neither is there any detail about the requests they have counted — how many are demands for basic subscriber information, how many for communications metadata, and how many for actual e-mail or chat contents. The data on censorship is similarly limited: They’re counting governmental but not civil requests, such as takedown notices under the Digital Millennium Copyright Act.

For all those limits — and the company will be striving to provide some more detail, within the limits of the law — this is a great step toward bringing vital transparency to the shadowy world of government surveillance, and some nourishment to the data-starved wretches who seek to study it. We cannot have a meaningful conversation about whether censorship or invasion of privacy in the name of security have gone too far if we do not know, at a minimum, what the government is doing. So, for a bit of perspective, we know that U.S. courts reported a combined total of 1,793 (criminal, not intel) wiretaps sought by both federal and state authorities. Almost none of these (less than 1 percent) were for electronic interception.

This may sound surprising, unless you keep in mind that federal law establishes a very high standard for the “live” interception of communications over a wire, but makes it substantially easier — under some circumstances rather terrifyingly easy — to get stored communications records. So there’s very little reason for police to jump through all the hoops imposed on wiretap orders when they want to read a target’s e-mails.

If and when Google were to break down that information about requests — to show how many were “full content” as opposed to metadata requests — we would begin to have a far more accurate picture of the true scope of governmental spying. Should other major players like Yahoo and Facebook be inspired to follow Google’s admirable lead here, it would be better still.  Already, though, that one data point from a single company — showing more than twice as many data requests as the total number of phone wiretaps reported for the entire country — suggests that there is vastly more actual surveillance going on than one might infer from official wiretap numbers.

How Much Government Snooping? Google It Up! is a post from Cato @ Liberty - Cato Institute Blog

Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:

“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”

I want to take claims like these with due gravity, but I can’t anymore.  Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time.  We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either.  But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed?  Pull the other one.

That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act.  Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.

As for what the problem might be, I can think of a couple of possibilities off the top of my head.  A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context.  Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.

Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.

These are, of course, blind guesses.  What’s disturbing is how much blind guessing the FISA court itself may be doing.  The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.

We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.

The Latest ‘Intelligence Gap’ is a post from Cato @ Liberty - Cato Institute Blog

As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests.  The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?

Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.

Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:

In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.

As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.

Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.

A Response to Intel Abuses at Last? is a post from Cato @ Liberty - Cato Institute Blog

Can I send Time magazine the bill for the new crack in my desk and the splinters in my forehead? Because their latest excretion on the case of Colleen “Jihad Jane” LaRose and its relation to Patriot Act surveillance powers is absolutely maddening:

The Justice Department won’t say whether provisions of the Patriot Act were used to investigate and charge Colleen LaRose. But the FBI and U.S. prosecutors who charged the 46-year-old woman from Pennsburg, Pa., on Tuesday with conspiring with terrorists and pledging to commit murder in the name of jihad could well have used the Patriot Act’s fast access to her cell-phone records, hotel bills and rental-car contracts as they tracked her movements and contacts last year. But even if the law’s provisions weren’t directly used against her, the arrest of the woman who allegedly used the moniker “Jihad Jane” is a boost for the Patriot Act, Administration officials and Capitol Hill Democrats say. That’s because revelations of her alleged plot may give credibility to calls for even greater investigative powers for the FBI and law enforcement, including Republican proposals to expand certain surveillance techniques that are currently limited to targeting foreigners.

Sadly, this is practically a genre resorted to by lazy writers whenever a domestic terror investigation is making headlines. It consists of indulging in a lot of fuzzy speculation about how the Patriot Act might have been crucial—for all we know!—to a successful  investigation, even when every shred of available public evidence suggests otherwise.  My favorite exemplar of this genre comes from a Fox News piece penned by journalist-impersonator Cristina Corbin after the capture of some Brooklyn bomb plotters last spring, with the bold headline: “Patriot Act Likely Helped Thwart NYC Terror Plot, Security Experts Say.” The actual article contains nothing to justify the headline: It quotes some lawyers saying vague positive things about the Patriot Act, then tries to explain how the law expanded surveillance powers, but mostly botches the basic facts.  From what we know thanks to the work of real reporters,  the initial tip and the key evidence in that case came from a human infiltrator who steered the plotters to locations that had been physically bugged, not new Patriot tools.

Of course, it may well be that National Security Letters or other Patriot powers were invoked at some point in this investigation—the question is whether there’s any good reason to suspect they made an important difference. And that seems highly dubious. LaRose’s indictment cites the content of private communications, which probably would have been obtained using a boring old probable cause warrant—and the standard for that is far higher than for a traditional pen/trap order, which would have enabled them to be getting much faster access to more comprehensive cell records. Maybe earlier on, then, when they were compiling the evidence for those tools?  But as several reports on the investigation have noted, “Jihad Jane” was being tracked online by a groups of anti-jihadi amateurs some three years ago. As a member of one group writes sarcastically on the site Jawa Report, the “super sekrit” surveillance tool they used to keep abreast of LaRose’s increasingly disturbing activities was… Google. I’m going to go out on a limb and say the FBI could’ve handled this one with pre-Patriot authority, and a fortiori with Patriot authority restrained by some common-sense civil liberties safeguards.

What’s a little more unusual is to see this segue into the kind of argument we usually see in the wake of an intelligence failure, where the case is then seen as self-evidently justifying still more intrusive surveillance powers, in this case the expansion of the “lone wolf” authority currently applicable only to foreigners, allowing extraordinarily broad and secretive FISA surveillance to be conducted against people with no actual ties to a terror group or other “foreign power.” Yet as Time itself notes:

In fact, Justice Department terrorism experts are privately unimpressed by LaRose. Hers was not a particularly threatening plot, they say, and she was not using any of the more challenging counter-surveillance measures that more experienced jihadis, let alone foreign intelligence agents, use.

Which, of course, is a big part of the reason we have a separate system for dealing with agents of foreign powers: They are typically trained in counterintelligence tradecraft with access to resources and networks far beyond those of ordinary nuts. What possible support can LaRose’s case provide for the proposition that these industrial-strength tools should now be turned on American citizens?  They caught her—and without much trouble, by the looks of it. Sure, this domestic nut may have invoked to Islamist ideology rather than the commands of Sam the Dog or anti-Semitic conspiracy theories… but so what? She’s still one more moderately dangerous unhinged American in a country that has its fair share, and has been dealing with them pretty well under the auspices of Title III for a good while now.

Every Time I Say “Terrorism,” the Patriot Act Gets More Awesome is a post from Cato @ Liberty - Cato Institute Blog

Climb aboard the TARDIS campers, we’re going to take a magic YouTube voyage to a strange parallel universe, very much like ours, except Barack Obama sports a dashing goatee and… Sorry, what’s that?  Not a parallel universe, you say? August of 2007, you say?

Wait, that can’t be right. Because right around 20 seconds in, Barack Obama says that under his administration, there would be “no more National Security Letters to spy on citizens who are not suspected of a crime.” That’s not who we are, he says! Not what’s needed to fight terrorists, he says!

And yet his Justice Department has quietly but steadfastly fought any effort to limit the use of National Security Letters. When Democratic lawmakers attempted to require that these administrative subpoenas, issued by FBI agents without judicial supervision, be issued only to obtain the records of suspected terrorists or foreign agents or people they’d been in contact with—or if necessary to obtain records relevant to the activities of suspected terrorists in the interest of identifying specific individuals—the administration worked behind the scenes to rally Republicans and Blue Dogs against those changes.

You know, a few more years like this, I’m liable to run right out of Hope™.

A Surveillance Newsflash from Planet Hopeychange is a post from Cato @ Liberty - Cato Institute Blog